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WATER RIGHTS

IN THE

WESTERN STATES.

THE lAW OF APPROPRIATION OP WATER AS APPLIED ALONE* IN SOME JURISDIC-
TIONS, AND AS APPLIED TOGETHER WITH THE COMMON LAW OP RIPARIAN
EIGHTS IN OTHERS. FEDERAL AND CALIFORNIA STATUTES IN FULL,
WITH DIGEST OF STATUTES OF ARIZONA) COLORADO, IDAHp/ KAN-
SAS, MONTANA, NEBRASKA, NEVADA, NEW MEXICO, NORTH
DAKOTA, OKLAHOMA, OREGON, SOUTH DAKOTA, TEXAS,
UTAH, WASHINGTON, WYOMING, ALASKA, HAWAII,; .
AND PHILIPPINB ISLANDS.
FORMS.

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# .«* . t, ••.',».* ' '* • *»< ■*•*! .•*«'«f"'»».*^i«'f'*'j

' ' !- • BY-'-"*. *» '•*• r*. *•'

SAMUEL a;wiEL, .

Of the San Francisco Bar.

SECOND EDITION, REVISED AND ENLAEGED TO MA'Y 1, 1908.

4 • « I,

SAN Pl^NCISCO:

BANCROPT-WHIT^T COMPANr,

Law Pubushers and Law BookseijLers.

1908.

SAMUEL C. WIEL,

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Copjright, 1908.

Bir

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SAMUEL e. ^lEL.

INTRODUCTION TO THE SECOND EDITION.

There is an aspect of the law of waters which should be ac-
curately imderstood, since it lies at the foundi\tion of much of
the dealings ef the courts with rights in waters, and without which
nnderstanding the subject would seem a mass of many confused
principles. This is the most important principle that all systems
of water law rest upon the civil-law idea that running water in
a natural stream is not itself, in specie or as a substance, the sub-
ject of ownership, nor property in any sense of the word, but is
in a class with the air in the atmosphere. Correspondingly, it is
equally important to appreciate that this absolutely excludes the
common-law maxim *'Cujus est solum ejus est usque ad caelum"
from any bearing upon the law of watercourses (leaving it solely
applicable to standing water and percolating water) ; and that
the term **land" does not include ^'aqiia profluens/' or water
running in a natural stream. The law of watercourses is deduced,
not from that common-law maxim, but from the civil-law prin-
ciple first mentioned, negativing the maxim in regard to water-
courses.

For its law of watercourses the common law went directly to
the civil law and borrowed this principle, while the law of appro-
priation borrowed it from the common law. All systems of law
of watercourses are but a development of the following ** first prin-
ciples *':

1. The corpus (or particles or aggregate drops) of running
water in a natural stream is not property in any sense of the
word; but is, like the air in the atmosphere, or like fish in the
water, not the subject of private ownership, and nobody's prop-
erty.

2. The only property right thereto that can exist is the right

to take and use the water (called usufructuary), and have it flow

that it may be taken and used.

(iii)

iT INTBODUCTION.

3. The portion taken out of the stream, passing under pri-
vate possession and control, becomes the private property of the
taker (during such possession only, becoming again nobody's prop-
erty when it escapes or is abandoned).

The law of watercourses (as distinguished from that of stand-
ing or percolating water) under whatever system, is but a de-
velopment of the questions, who may have this usufructuary right
to take and make private property or private use of this unowned
substance, and subject to what conditions.

An appreciation of this fundamental civil-law conception that
the water running in a natural stream (aqua profluens) is not a
part of the land, nor the subject of property in any sense of the
word, is essential to an accurate understanding of the law of water-
courses.

TABLE OF CONTENTS.

PART L

THE LAW OF APPROPRIATION.

CHAPTER I.

HISTORICAL REVIEW.

A. ORIGIN OF THE DOCTRINE OP APPROPRIATION.

§ 1. California before the arrival of pioneers.

§ 2. Mexican law.

§ 3. Customs of miners.

§ 4. The customs and the court.

§ 5. Irwin v. Phillips.

B. DEVELOPMENT OP THE DOCTRINE.

§ 6. Irwin v. PhiUips followed.

§ 7. ^as this new rule to be made to conform to the common lawf

§ 8. Was this judicial legislation f

I 9. How far applicable to other pursuits than mining f

§ 10. Extension beyond CaHfomia.

C. EARLY LEGISLATION.

§ 11. Congress and the public domain.

9 12. Federal statutes of 1866 and 1870.

9 13. Comments on these Federal statutes.

§ 14. State legislation.

D. THE CONFLICT OVER RIPARIAN RIGHTS.

§ 15. Private title to land and new industries.

§ 16. The law and irrigation.

§ 17.. Same.

S 18. Riparian rights before Lux v. Haggin.

§ 19. Same.

§ 20. Lux V. Haggin.

(V)

vi TABLE OP CONTENTS.

I 21 Bamlt of Lux ▼.

I 22. Biparian rights upheld in eleren States and Territoriea.

I 23. Biparian rights rejeeted in seven States and Territories.

I 24. In t|ie supreme eonrt of the United States.

E. LATER AND BECENT LEGISLATION.

I 25. Irrigation codes.

I 26. Effect of this legislation upon riparian rights.

I 27.' Later Federal legislation.

I 28. National Irrigation Act.

I 29. Water users associations.

f 30. Irrigation districts.

I 31. Statement of the doctrine of appropriation.

8 32.

8 33.

8 34.

1 35.

fi 36.

8 37.

8 38.

^8 39.

i ^0.

fi«.

8 42.

8 43.

CHAPTER n.

UNITED STATES OR STATE.

A. CALIFORNIA DOCTBINE.

The United States or the State — California system.
Appropriation as a grant nnder this system.

B. OOLOBAIX) DOCTBINE.

United States or State — Colorado doctrine.

Statement of the Colorado doctrine.

Water ''the property of the public" or *'of the State."

Comments on the Colorado view.

Beplies to these objections.

Same.

Views of the supreme court of the United States.

Same.

Some inconsistencies.

Conclusion.

CHAPTER III.

NATURE OP THE RIGHT OP APPROPRIATION,

A. RELATION BETWEEN APPROPRIATOBS.

8 44. Priority governs.

8 45. Same — ^Whole stream.

8 46. Same— In times of deficiency.

8 47. Successive appropriations.

TAHLE OP CONTENTS. vu

$ 48. Periodieal appropriations.

§ 49. Temporary appropriations.

§ 50. No partiality.

§ 51. Preferences and pro-rating.

S 52. Same — ^Pro-rating.

B. RELATION TO RIPARIAN PROPRIETORS.

f 53. To subsequent settlers.

§ 54. To prior settlers.

I 55. Same.

i 56. Prior settlers who hold the land in fee.

{ 57. Prior settlers before patent.

§ 58. Conclusions.

C. CHARACTERISTICS.

§ 59. The right is nsufructoary.

S 60. No property in the * * cofpug. "

S 61. No property in the channel.

i 62. The right is ezelnsive.

S 63. Independent of ownership or possession of land.

§ 64. Distinguished from right to a ditch.

§ 65. Real estate.

§ 66. Historically based on possession.

I 67. ConditionaL

§ 68. An incorporeal hereditament.

§ 69. Definition.

CHAPTER rV.

WHO CAN APPROPWATB.

$ 70. Persons in general.

9 71. Tenants in common.

9 72. Riparian owners.

9 73. Corporations.

9 74. Government reservations.

CHAPTER V.

WHERE AN APPROPRIATION CAN BE MADE.

A. ON PUBLIC LAND.

9 75. The first appropriations were all on public land.

9 76. State lands.

I 77. Presumption that lands are public.

Tiii TABLE OF CONTENTS.

B. ON PRIVATE LAND.
8 78. Introductory.
{ 79. Conilieting views.
I 80. The principle involved is that of access.

C. COLOBADO DOCTRINE.

§ 81. Hostile appropriation.

§ 82. With consent of the landowner, or by the landowner himself, or

against strangers to the landowner.
§ 83. By condemning a right of entry or right of way.

D. CALIFORNIA DOCTRINE.

8 84. Conflicting expressions.

8 85. HostDe appropriation.

8 86. With consent of the landowner or by the landowner himBelf or

against strangers 16 the landowner.
8 87. By condemnation.
8 88. Review of decisions.
8 89. Recapitulation.
8 89a. Government ditches on private land.

CHAPTER VI.

WHAT CAN BE AJPPROPRIATED.

Water in a surface watercourse.

What constitutes a watercourse.

Same — Springs.

Same — Sloughs.

Same — ^Flood or storm ,waterB.

Same — Definition.

Surface tributaries.

Navigable streams.

Interstate streams.

Same. - ; -

Same — Kansas v. Colorado.
I 100. Artificial watercourses.
§ 101. Diffused surface water.
6 102. Lakes and ponds.
§ 103. Swamp lands.
§ 104. Underground water.

90.

91.

92.

93.

94.

95.

96.

97.

98.

988

99.

TABLE OF CONTENTS. ix

CHAPTnER VII.

HOW AN APPROPRIATION IS MADE— THE ORIGINAL

METHOD.

S 105. The original method.

§ 106. Origin of thiB method.

§ 107. Ownership of land not needed.

A. BY ACTUAL DIVERSION.

§ 108. Distingniflhed from statutory method.

1 109. The statutes do not apply.

§ 110. Settlement on stream banks not alone enough.

B. TO SECTTBE THE BENEFIT OF RELATION.

$ 111. Objeet of statutory provisions.
§ 112. Provisions ehiefly declaratory only.

C. NOTICE.

§ 113. Form 'of notice.

S 114. Contents and recording of notice.

§ 115. Purpose of notice.

§ 116. The notice operates as a warning.

$ 117. Failure to post notice.

§ 118. Notice alone not enough.

D. BENEFICIAL PURPOSE.

§ 119. Necessity for bona fide intention.

§ 120. What constitutes a beneficial purpose.

§121. Motive.

i 122. Evidence of intention.

§ 123. Intention alone not enough.

B. DILIGENCE.

§ 124. Necessity for diligence.

§ 125. What constitutes diligence.

§ 126. Delay during legal proceedings.

§ 127. Failure to use diligence.

F. COMPLETION OF CONSTRUCTION WORK.
S 128. Completion of work.
S 129. What constitutes completion.
! 130. Means of diversion.
{ 131. Diversion alone.

X TABLE OP CONTENTS.

§ 132. Use of existing ditehes.

S 133. Same.'

§ 134. Changes in coarse of eonstmeiion.

G. BELATINO BACK.

§ 135. Origin of the doetrine.
S 136. Effect of relation.

H. ACTUAL APPLICATION.

i 137. Necessity for actual application and use.

§ 138. Same.

I 139. Becapitulation.

i 139a. Supplementary proceedings.

CHAPTER VIII.

HOW AN APPROPRIATION IS MADE— IN STATES ADOPT-

INQ IRRIGATION CODES.

I 140. The Wyoming method.

§ 141. Authority of State Engineer.

§ 142. Exdusiveness of the statutory method.

f 143. Application for permit.

8 144. Examination of application and issuance of permit.

§ 145. Same — ^Rejection of applications.

§ 146. Prosecution of the work.

i 147. Issuance of certiilcate.

i 148. Belation.

§ 149. Comments on operation of the statutes.

§ 149a. Supplementary proceedings under Federal Bight of Way Act&

CHAPTER IX.

MEANS OP USE— USE IN ARTIFICIAL WATERCOUBSES

(DITCHES, FLUMES, PIPES, ETC.).

A. ABTIPICIAL WATEBC0XJB8E8.

{ 150. Introductory.

§ 150a. Use in artificial watercourse.

§ 151. Ditch, etc, an easement.

§ 152. Ditch and water right distinguished.

TABLE OF CON'l'ENTS. xi

B. WATEB IN ABTEPICIAL WATEBOOUBSE.

§ 153. Water in artificial watercourse — ^Water and water right distinguished.

§ 154. Water in artificial watercourse is personalty.

8 15ia. Same.

§ 154b. Same.

§ 155. Same— As aifecting water supply contracts.

$ 155a. Same — As |iif ecting ' ' development ' ' of water.

§ 156. The law of natural waters does not apply to water in artificial water-

oovirse.

§ 157. Same — ^Drainage water.

§ 158. Same — Drainage into a natural stream.

§ 159. Same.

C. USE OP ABTIFICIAL W^TEBCOUBSE.

§ 160. Contracts concerning ditches.

§ 161. Joint use of ditch.

§ 162. Bepair of . ditehea.

I 163. Damage from breaking ditches.

§ 164. Same.

CHAPTER X.

IMITATIONS ON USE— LIMITATIONS ON QUANTITY OP

- WATEB.

A. THBEE TESTS.
§ 165. Introductory.
§ 166. The original claim.

$ 167. Capacity of ditch — Intermediate test. *

§ 168. Beneficial use — The final teiBt.
9 169. Beason of these rules.

B. BENEFICIAL USE THE ULTIMATE TEST.

§ 170. What constitutes waste.

« 171, Future needs.

S 172. Same.

§ 173. Same.

§ 174. Duty of water.

$ 175. Measurement of waters

f 176. Summary.

xii TABLE OP CONTENTS.

CHAPTER XI.

LIMITATIONS ON USE (CONTINUED)— LIMITATIONS ON
CHANGE OP MODE OP ENJOYMENT.

A. GENERAL PBINGIPLES.

S 177. The right is independent of mode of enjoyment.
§ 178. No injury to others.

B. CHANGE OF MEANS OF USE.

8 179. Change of means of use.
I 180. Changes in ditches.

C. CHANGE OF POINT OF DIVEBSION.

8 181. Point of diversion may be changed.
I 182. Statutory procedure.
§ 183. Same.

D. CHANGE OF PLACE OF USE.
8 184. Change of place of use.
8 185. Statutory procedure.
8 186. Change on sale of water right.

E. CHANGE OF PUBPOSE OF USE.
8 187. Change of purpose.

CHAPTER XII.

PROTECTION OP THE RIGHT.

A. GENEBAL PBINCIPLES.
8 188. Introductory.
8 189. Materiality of injury.

B. mJUBY TO QUANTITY.
8 190. General rules.

C. INJUBY TO QUALITY.

8 191. Materiality of injury.

8 192. Same.

8 193. Mining debris.

8 194. Priority.

TABLE OF CONTENTS. xiii

D. PBOCEDUBE.

195. Parties. '

196. Unrepresented interests.

197. Jnrisdietion.

198. Injunction.
§ 199-205. Same.

206. Actions to quiet title, settling rights, etc.

207. Specific performance, etc.

208. Actions at law.

209. Pleading — Joinder of parties or causes of action.

210. Same— Allegations in complaint.

211. Same.

212. Practice.

213. Damages.

214. Decree.

215. Use of physical force.

216. Crimes.

CHAPTER XIII.

ALIENATION AND DISPOSAL OF RIGHT— CONTRACTS—

• CONVEYANCES.

A. CONTBACTS.
S 217. Power to contract.
§ 218. Contracts (continued).*
S 219. Contracts (continued).
i 220. Assignment.

B. CONVEYANCES.
! 22L Conveyances.
S 222. Formalities on transfer.
8 223. Operation of conyeyance.
f 224. Sale in parts.

C. APPURTENANCE.
I 225. Appurtenance.
$ 226. Appurtenance (continued).
f 227. Appurtenance (continued).

D. PAROL SALE.
$ 228. Parol sale.

Jdv TABLE OP COXTENTS.

CHAPTER XIV.

LOSS OP RIGHT.

8 229. Introductory.

A. ABANDONMENT.

I 230. Abandonment is Toluntary and a question of fact!

{ 231. Non-user.

i 232. Same.

{ 233. Discharged waste.

8 234. Becapture.

8 235. Parol sale or faulty deed.

8 236. Failure of diligence in construction work.

B. POBFEITXJBE.

8 237. Failure to comply with statute in appropriating.

8 238. . Smith v. Hawkins.

8 239. Forfeiture under statutes.

C. ADVERSE USE.

8 240. In general.

8 241. Effect of adverse use.

8 242. Extent.

8 243. Essentials.

8 244. Continuous.

8 245. Exclusive; uninterrupted.

8 246. Open; notorious.

8 247. Claim of right— Color of title.

8 248. Hostile to owner — Permission.

8 249. Invasion of right — Chance to prevent.

8 250. Same.

8 251. Payment of taxes. '

8 252. Against the United States.

8 253. Conclusion.

D. ESTOPPEL.

8 254. Elements of estoppel in pais,
8 255. Estoppel by silence.

TABLE OF CONTENTS. xv

CHAPTER XV.

LOSS OF RIGHT (CONTINUED) —EMINENT DOMAIN.

§ 256. NeeeMity for publie use.

§ 257. Necessity for hearing and eompensatibn.

§ 258. What is a pnblie use.

9 259. Private enterprise as public use.

{260. Clark T. Nash.

S 261. Same.

§ 262. In California.

9 263. Statement of the mle of Clark ▼. Nash.

S 264. Procedure.

§ 265. A question of procedure.

PART II.

THE COMMON LAW OF. RIPARIAN RIGHTS.

CHAPTER I.

INTEODUCTORY.

i 266. Appropriation uid the common law.

i 266a. Same.

! 267. Same.

! 268. Biparian rights auder the California doctrine.

CHAPTER IL

PmST PRINCIPLES.

A. GENEBAL.
i 269. The civil law.

S 270. The common law borrowed from the civil law.
{ 271. The earpus of naturally running water is not property.
1272! Same.

XTi TABI4E OF CONTENTS.

I 273. But one may binve a right to take it — ^A nraf metuary right.

§ 274. When taken the water ie private property.

§ 276. These principles developed.

B. ACCESS TO THE STBEAM.

I 276. Only riparian proprietors have access.

§ 277. Same.

{ 278. Same.

C. ''CUJUS EST SOLUM" MAXIM NOT APPLIED.

§ 279. The "en jus est solnm" doctrine.

I 280. Same.

§ 281. Same.

§ 282. Besnlts.

CHAPTER III.

NATURE OP RIPARIAN RIGHT.

i 283. Natural right.

{ 284. Part and parcel of riparian land.

i 285. Usufmctnarj.

{ 286. As subject of grant — ^Between the parties thereto.

i 287. Same— As affecting other proprietors.

CHAPTER IV.

WHAT PERSONS AND UPON WHAT WATERS.

§ 288. Who are riparian proprietors.

i 289. What waters — ^Watercourses.

I 290. Navigable streams.

I 291. Interstate streams.

I 292. Standing water — Lakes — ^Ponds.

§ 293. Percolating water.

TABLE OF CONTENTS. zvii

CHAPTER V.

LIMITATIONS ON USE OF WATER-REASONABLE USE.

f 294. Equality of riparian owners.

§ 295. Natural QBe8^(Use to support life). ,

S 296. Artificial uses — (Business uses).

§ 297. Same.

§ 298. Beasonable use for irrigation.

S 299. Same.

§ 300. Apportionment.

S 301. Manner of use.

§ 302. Betum of surplus.

CHAPTER VI.

LIMITATIONS ON USB OP WATER (CONTINUED)— USB

CONFINED TO RIPARIAN LAND.

S 303. Use confined to riparian land.

i 304. What is riparian land — Must touch the stream.

S 305. Same — ^Beceding from the stream — ^Land title.

S 306. Same.

S 307. Same.

§ 308. Same — ^Within the watershed.

i 309. Bounded by reasonableness in each case.

§ 310. Non-ri2>arian use by both parties.

§ 311. Conclusions as to riparian land.

§ 311a. Indefiniteness of the common law.

CHAPTER Vn.

PROTECTION OF THE RIGHT.

A. DAMAGE AS AN ELEMENT OF, WBONGFULNESS— BETWEEN

BIPAEIAN PBOPBIETORS.

S 312. Introductory.

§ 313. Some showing of at least possible damage essential.

§ 314. Same.

S 315. Damage to a reasonable degree not wrongful.

9 316. Damage in excess of reasonable degree.

jcviii TABLE OP CONTENTS.

I 317. Same — ^Where the damage is only prospective.
{ 318. Same — ^Deelaratory decree.

B. BETWEEN A BIPABIAN AND NON-BIPABIAN OWNER

I 319. Acts causing no present damage.

I 320. Aets causing neither present nor prospectiye damage.

I 320a. Same — ^Appropriation of surplus.

I 3^1. Same — Damage implied by law.

i 322. Same — Storm waters.

S 323. Same.

I 324. Declaratory decree.

( 324a. Conclusions.

CHAPTER Vm.

PROTECTION OP RIGHT (CONTINUED).

A. FOEMS OP INJUBY.

9 325: Forms of injury.
f 326. Pollution.

B. PBOCEDUBE.
8 327. Parties.
8 328. Injunction.
8 329. Bills -to quiet title, settling rights, or for apportionment.

8 330. Same.

9 331. Same.

9 332. Damages at law.

8 333. Pleading.

8 334. Judgment or decree.

CHAPTER IX.

LOSS OP RIGHT.

A. ABANDONMENT AND ADVEB0E USE— AVULSION.

9 335. No abandonment.
9 336. AYulsion.
9 337. Adverse use.

§ 338. In general.

§ 339. A question of procedure.

S 340. Same.

§ 341. Same.

§ 342. Same — In California.

TABLE OP CONTENTS.
B. EMINENT DOMAIN.

CHAPTER X.

COMPARISON OF THE LAW OP APPROPRIATION AND OP

RIPARIAN RIGHTS.

§ 343. Ihirpose^of this chapter.

I 344. First principles.

§ 345. As. dependent on ownership of land.

S 346. Contigaitj to stream.

§ 347. Mode of acquisition.

S 348. Beneficial use.

9 349. Preference of domestic use.

9 350. Equality vs. Priority.

9 351. In California.

PART III-

UNDERGROUND WATER.

CHAPTER I.

CONNECTED WITH A WATERCOURSE OR SOME OTHER

DEFINITE BODY OP WATER.

9 352. Classification of underground waters.

9 352a. Definite underground streams.

9 353. The sub-flow of a stream.

9 354. Sub-flow a part of the stream.

9 355. Separate rights in sub-flow.

9 356. Percolations tributary to watercourses.

9 357. Underground lakes or artesian belts.

TABLE OP CONTENTS.

CHAPTER IL

PERCOLATING WATER.

« A. ENGLISH BULE.

f 358. Diffused andergTound water.
I 359. The EngliBh role.

B. KATZ V. WALKINSHAW.

§ 360. The California cases.

§ 361. Katz V. Walkinshaw.

§ 362. The state of the authorities.

§ 362a. Same.

§ 363. The rule contended for.

§ 364. Same.

C. SUCCEEDING CALIFORNIA CASES.

§ 365. McClintock v. Hudson.

§ 366. Cohen v. La Canada Water Co. (First appeal.)

§ 367. Montecito Co. ▼. Santa Barbara.

§ 368. Newport v. Temescal Water Co.

§ 369. Cohen v. La Canada Water Co. (Second appeal.)

§ 369a. Burr v. Maclay Banch Co.

§ 370. In the district court of appeals.

§ 371. Recapitulation of the California cases.

§ 371a. Conclusions.

§ 372. Same.

CHAPTER III.

PERCOLATING WATER— REASONABLENESS.

9 372a. Damage.

§ 372b. The damage may be excused.

§ 373. Same.

9 374. Reasonableness as a question of fitness of purpose.

§ 375. Same.

§ 376. Same — Drainage.

9 377. As affected by degree of damage.

§ 378. Importance in mining regions.

9 378a. Miscellaneous rulings.

TABLE OP CONTENTS.

CHAPTER IV.

PERCOLATING WATER (CONTINUED)

§ 379. Difficulty of application of the rule.

i 380. New rule compared to riparian rights.

§ 381. New rule and the law of appropriation.

§ 382. Same.

PART IV.

SUPEEVISION AND DETERMINATION OF EIGHTS
UNDER IBEIGATION CODES AND STATUTES.

CHAPTER I.

SUPERVISION AND ADMINISTRATION.

8 383. Legislation.

S 384. Same.

8 385. Supenrision of State.

8 386. Intermediate subdivisions.

8 387. Primary subdivisions.

8 388. Police regulations.

8 389. Actions by and against officials.

8 390. Comments of Department of Agriculture.

8 391. Water Commissioners and State Engineer in California.

TABLE OP CONTENTS.

CHAPTEE II,

DETERMINATION OP EXISTING PRIORITIES— BY AD-

MINISTRATIVE OFFICERS.

§ 392. Wyoming method.

§ 393. Preparatory steps.

§ 394. Procedure.

§ 395. Certificates.

§ 396. Constitationality.

§ 397. How far exelasive.

CHAPTER III.

SAME— DETERMINATION OF PRIORITIES BY SPECUL

PROCEEDINGS IN COUftT.

§ 398. Colorado method.

§ 399. Preparatory steps.

§ 400. Procedure.

§ 401. Decree and certificate.

§ 402. Constitutionality.

§ 403. Nature of the proceedings.

§ 404. Carrier or consumer.

§ 405. Scope of proceedings.

§ 406. Form of decree. '

§ 407. Effect of decree.

§ 408. Comments of Department of Agriculture.

TABLE OP CONTENTS. xxiii

PART V.

DISTRIBUTION OF WATER,

CHAPTER L

BIGHTS OF CONSUMERS PEOM DISTRIBUTORS.

A. MSTBIBUTOES OF WATER

S 409. What corporations are in public service.
S 410. Mntoal companies.

B. DUTIES AS QUASI PUBLIC SEBYANTS.

{ 411. The common law.

i 412. Cbnstitntional declaration.

• C. PUBLIC DUTIES.

I 418. Must serve all the public (compulsory service).

{ 414. Without unreasonable conditions.

{ 415. With adequate facilities.

§ 416. Without discrimination. •

§ 417. At reasonable rates.

§ 418. Same— Bate regulation by statute.

CHAPTER n.

RIGHTS OP CONSUMERS FROM CORPORATIONS BASED

ON CONTRACT.

{ 419. Power to contract.

§ 420. Unreasonable contracts.

S 421. Contracts fixing rates.

S 422. Contracts granting easements.

TABLE OF CONTENTS.

CHAPTER III.

EIGHTS OF CONSUMERS FROM CORPORATIONS AS- AP-

PROPRIATORS.

§ 423. The Colorado rule.

§ 424. Origin of the Colorado rule.

§ 425. Ezpreerions of the rule.

§ 426. Beeults of the rul^ — Priorities.

i 427. Same.

§ 428. Sftme — ^Parties to actions.

CHAPTER IV.

IRRIGATION DISTRICTS.

§ 429. Purpose.

§ 430. California.

§ 431. Colorado, Idaho, Kansas, Montana, Nebraska, NoTada, Oregon, Tezu,

Utah, Washington.
§ 432. Comments.

CHAPTER V.

NATIONAL IRRIGATION.

§ 433. Sources of information.

§ 434. Withdrawal of lands.

§ 435. Water users assoeiations.

§ 436. Articles of incorporation and by-laws.

§ 437. Stock subscriptions and certificates.

§ 438. Assessments.

§ 439. Private holdings — ^Excess lands.

§ 440. Contract with Secretary of Interior.

§ 441. Completion of organization.

§ 442. Water right applications. /

CHAPTER VI.

WATER USERS ASSOCIATIONS (CONTINUED)

TABLE OF CONTENTS.

PART YI.

STATUTES.

PART VII.

FORMS.

TABLE OF CASES.

VtLge

Abbott V. Pond (Cal.) 255, 285, 369,

376

Abbott, Taylor v.

Abel V. Love (Cal.) 131

Abila, Directors v.

Abraham, Barclay v.

Ackroyd, King v.

Acme Oil Co., Dillon v.

Acton V. Blnndell. (Eng.) 240, 406,

434, 549, 556, 584

Ada etc. Co. v. Farmers' etc.
Co. (Idaho), 127, 232, 337, 338,

350, 354

Adam, Druley v.

Adams v. Modesto (Cal.) 179

Adams, Medano etc. Co. v.

Adams, North American etc..
Co. V.

Adelsbach, Stufflebeam ▼.

Agasse, Oliver v.

Ager, Joseph v.

Aj^cultural Ditch Co., Farmers'
Ind. Ditch Co. v.

Ahem v. Board of Directors
(Colo.) 652

Ahern, People v.

Akeyson, Kearney etc. Co. v.

Alamosa Co. v. Nelson (Colo.) 123,
350, 352, 353, 610, 617

Alaska Perseverance M. Co.,
Thorndyke v.

Albuquerque etc. Co. v. Gutier-
rez (N. Mex.) 44, 97, 198, 626,

641

Albuquerque Irr. Co. v. Gutier-
rez (U. S.) 97

Albuquerque Land etc. Co.,
Gutierres v.

Aleatraz Co., Wilson v.

Alcorn v. Sadler (Miss.) 165

Alder Gulch etc. Co. v. Hayes
(Mont.) 97, 100, 288

Aldridge v. Tuscumbia etc. R.
Co. (Ala.) 398

Alessandro Irr. Dist., Stimson v. .

Alexander, Fallsburg Power
Mfg. Co. V.

Page

Alhambra etc. Co. v. May-
berry (Cal.) 154, 444

Alhambra etc. Co., Mayberry v.

Alhambra etc. Water Co. .v.
Richardson (Cal.) 371, 372, 381,

513

Aliso etc. Co. v. Baker (Cal.) 391

AUaman, Clark v.

AUard v. Carleton (N. H.) 131

Allen V. Flood (Eng.) 577

Allen V. San Jose etc. Co. (Cal.)

230 286

Allen V. Stowell (Cal.) ' 315

Allen D. Co., Oregon Const. Co.

Allison, Terrell v.

Allonez Co., Edwards v.

Alston V. Grant (Eng.) 3C6

Alta etc. Co., Farm Inv. Co. v.

Alta Land Co. v. Hancock

(Cal.) 40, 112, 131, 344, 369, 371,

373, 374, 378, 454, 458, 473, 478,

479, 482, 483, 519
Altnow, Williams v..
Altoona etc. Co., Integral etc.

Co. V.
Alturas etc. Co., Frost v.
Amador Canal etc. Co., Mitchell

v.
Amador etc. Co. v. De Witt

(Cal.) , 390

Amador etc. Co., Ginocchio v.
Amador etc. Co., Hobs v.
American Assn., Kirk etc. Co. v.
American etc. Co. v. Bradford

(Cal.) . 300, 370, 371, 375, 377, 379
American etc. Co., Indianapolis

W. Co. V.
American etc. Co., Mahoney v.
American etc. Co., Parker v.
American Tel. Co., Little v.
Ames etc. Co. v. Big Indian

etc. Co. (Fed.) 310, 322, 325,

328, GIO
Anjity etc. Co., Lamar etc. Co.

Amoskeag Co., Head v.

(xxvii)

rui

TABLE OF CASES.

Page

Anaheim W. Co. v. Ashcroft

(Cal.) 230 341, 376, 378

Anaheim W. Co. v. Fuller (Cal.) 4,

40, 463, 473, 475, 478, 480, 481,

490, 493, 499, 502, 503, 506, 535,

540
Anaheim etc. Co., McDermott v.
Anaheim etc. Co., Bineon etc.

Co. V.
Anaheim etc. Co. v. Semi-tropic

etc. Co. (Cal.) 37, 133, 197, 247,

358, 380, 384, 446, 453, 464, 466,

468, 493
Anderson v. Bassman (Fed.) 14^

40, 44, 77, 172, 173, 267, 311, 322,
379, 441, 451, 468, 498
Anderson fV. Cook (Mont.) 132, 264
Anderson v. Grand Valley Irr.

Dist. (Colo.) 651, 736

Anderson, Platte Co. v.
Anderson, Senior v.
Andrews v. Lillian Irr. Dist.

(Neb.) 652

Angiola etc. Co., Lower Tule

etc. Co. V.
Anglo etc. Bank, Healy v.
Angus, Dalton v.
Antelope etc. Co., Gurnsey v.
Anthracite etc. Co., Roaring

Creek Co. v.
Appeal of Bixler
Appeal of Cleghorn
Arave v. Idaho etc. Co. (Idaho)

257, 258
Argile, Promontory etc. Co. v.
Arkansas etc. Co., Fort Lyons

etc. Co. V.
Arkwright V. GiU (Eng.) 247, 248,

250, 358
Armstrong v. Larimer etc. Co.

(Colo.) 97, 106

Armstrong, New Mercer etc. Co.

Arnett v. Linhart (Colo.) 132, 340,

342

Arnold, Lavery v.

Arnold, Lyman v.

Arnold v. Passavant (Mon^.) 269,

274

Arrowhead etc. Hotel Co., Con-
rad V.

Arroyo etc. Co. v. Bequette
(Cal.) 132, 723

Arthur v. Grand Trunk R. B. Co.
(Ont.) 163

Arthur etc. Co., New Cache etc.
Co. V.

Ashcroft, Anaheim W. Co. v.

Pag»

Ashenfelter v. Carpenter (Colo.)

289

Ashley, Brown v.

Ashley, Clark v.

Askew, McDonald v.

AtcMnson etc. Co. v. Herman
(Kan.) 509

Atchison v. Peterson (U. 8.) 14,
17, 20, 46, 48, 84, 85, 236, 297, 299,

313, 321, 350

Atkinson v. Washington Irr. Go.
(Wash.) 81, 117, 247, 385

Atlantic Trust Co. v. Wool-
bridge Canal ft Irr. Co.
(Fed.) 626

Attorney General v. Great East-
ern By. Co. (Eng.) 455

At wood, Baldock v.

Austin V. Chandler (Ariz.) 44, 123,

301, 732

Austin, Pennsylvania M. L. L
Co. V.

Austin, Todd v.

Auter, Chamberlain v.

Authors V. Bryant (Nev.) 322, 329,

376

Avery v. Vermont Electric Co.
(yt.) 392

Aylmore v. City of Seattle
(Wash.) 135

Azuza etc. Co., Fuller v.,

Azusa etc. Co., Vineland etc. Co.

Babbitt, Ysleta v.
Babcock, Bates v.
Bachman v. Meyer (Cal.) 178

Bachmat, Stanislaus W. Co. v.
Backhouse v. Bonomi (Eng.) 439
Bacon v. Kearney etc. Syndi-
cate (Cal.) 257, 258
Baer etc. Co. v. Wilson (Colo.)

97, 101
Baglino v. Giorgetta (Colo.) T^9
BaUey, Wilfong v.
Bain, Mitchell v.
Baker, Aliso etc. Co. v.
Baker v. Brown (Tex.) 41, 454,

464

Baker, Brown v.
Bakersfield, Kern etc. Co. y.
Balderston, Revenue etc. Co. v.
Baldock v. Atwood (Or.) 338

Baldridge v. Leon etc. Co.

(Colo.) 145, 226, 227, 685

Baldwin, Lqs Angeles v.
Baldwin, Strong v.
Baldwin, Weill v.

TABLE OF CASES.

ZXIX

Page

Balfour v, Fresno Irr. Co.

(Cal.) 335

Ball V. Kehl (Cal.) 151, 239, 300,

358 379
Ball V. Nichols (Cal.) . ' 370

Ballard v. Tomlinson (Eng.) 306
Baltes T. Farmers' Irr. Dist.

(Neb.) 652

Baneroft etc. Co., Creer v.
Bangor etc. Co., Bobbins ▼.
Bank of British N. A. v. Miller
(Fed.) 341, 342, 343

Barber, Higgins ▼.
Barber, Isaacs v.

Barclay v. Abraham (Iowa) 547,

578, 579, 586
Bardsley v. Boise etc. Co.
(Idaho) 626

Barker, Deadwood etc. Co. ▼.
Barker v. Oould (Cal.) 535, 536
Barkley v. Tieleke (Mont.) 65,

337, 345, 350
Barkley v. WUcox (N. Y.) 163

Barnard v. Shirley (Ind.) 306

Bameich v. Mercy. (Cal.) 263, 358,

470

Barnes v. Fox (Cal.) 100,, 112, 263,

267, 286, 287, 300, 513, 726

Barnes v. Glide (Cal.) . 178

Barnes v. Sabron (Nev.) 97, 100,

103, 110, 161, 163, 197, 262, 264,

269, 288, 312
Bamnm v. Hostetter (Cal.) 325

Barrack, Geertson v.
Barrett v. Metcalf (Tex.) 41, 42,

454, 455
Barre Water Co., In re (Vt.) 392
Barstow Irr. Co. v. Cleghorn

(Tex.) 634

Bartholomew y. Fayette etc. Co.

(Utah) 101, 132, 135

Bartholomew, Kirk v.
Bartlett v. O'Connor (Cal.) 555,

576, 582

Barton v. Union Cattle Co.

(Neb.) 41, 509

Basey v. Gallagher (U. S.) 14, 17,

20, 22, 26, 27, 38, 46, 48, 50, 84,

104, 197, 198, 327

Bashore ▼. Mooney (Cal.) 230, 255,

324, 326, 369, 371, 373, 374

Bassman, Anderson v.

Bates V. Babcock (Cal.) 324

Bathgate v. Irvine (Cal.) 40, 112,

154, 310, 380, 384, 410, 442, 470,

473, 474, 479, 480, 493, 499, 513,

515, 517, 518
Bandy, McCrary v.

Pag«

Bau^rs v. Ball (Or.) 370, 377, 379,

509
Baugh, Wheatley v.
Baumann, Churchill v.
Baxter v. Gilbert (Cal.) 40, 112,

177, 497, 503
Baxter v. Vineland Irr. Dist.

(Cal.) 649

Bay Cities W. Co., Miller v.
Beach v. Spokane etc. Co.

(Mont.) 326

Bealey v. Shaw (Eng.) 407, 408
Beam, Schwab v.
Bean, Morris v.

Bean v. Stoneman (Cal.) 230, 256,

' 262, 286

Bear Lake v. Budge (Idaho) 50, 74,

608, 609, 741
Bear Lake etc. Co. ▼. Garland

(U. S.) 48, 88, 203, 204, 211, 254,

338, 344
Bear Lake Co. v. Ogden (Utah).

239
Bear River Co., Campbell v.
Bear River etc. Co. v. Boles

(Cal.) 104, 326

Bear River etc. Co., McDonald v.
Bear River Water Co. v. New

York Min. Co. (Cal.) 9, 299, 301,

302, 454, 532, 588
Bear etc. Co. v. Wilson (Colo.)

284, 288, 289
Bear River etc. Co., Wixon v.
Beatrice Gas Co. v. Thomas

(Neb.) 304

Beaudry, Shorb v.
Beaver Brook Res. ft C. Co. v.

St. Vrain etc. Co. (Colo.) 200,
262, 350, 352, 353, 356, 735
Beaverhead etc. Co. v. Dillon

etc. Co. (Mont.) 122, 123, 167,

359, 360
Beck, Sturr v.
Beck, Wellington v.
Becker v. Marble etc. Co.

(Utah) 109, 261, 264, 271

Bed Rock etc. Co., Bell v.
Beer v. Stroud (Ont.) 163

Beers v. Sharpe (Or.) 132, 190, 272,

377 380
Bell V. Bed Bock etc. Co. (Cal.) ' 355
Bell, Hicks v.
Bell, Lambom v.

Bellevue v. Daly (Idaho) 256

Benicia Water Co., Clyne v.
Benjamin v. Gulf Ry. (Tex.) 302
Bennett v. Morris (Cal.) 299

Bennett, Nevada etc. Co. v.
Benton, Crooker v.

TABLE OP CASES.

Page

Benton v. Johneox (Wash.) 25,

31, 42, 45, 79, 86, 93, 117, 142,
374, 411, 441, 442, 462, 493, 792
Benton, McLeran v.
Benwood Iron Works, Pittsbarg

R. Co. V.
Bequette, Arroyo etc. Co. v.
Bergin, Junkans v.
Bernard, Cox v.
Berrien Circuit Judge, Berrien

Springs Water Co. v.
Berrien Springs Water Co. v.

Berrien Circuit Judge (Mich.)

392
Berry v. Equitable etc. Co.

(Nev.) 264

Berry, Outhouse v.
Bessemer etc. Co. v. Wooley
. (Colo.) 295, 341, 342

Best, Brown v.
Best, Catlin etc. Co. v.
Best V. Wohlford (Cal.) 649, 650
Beyers v. Colonial etc. Co. (CaL)

291
Bickett V. Morris (Eng.) 450

Bicknell, Maoris v.
Bicknell, Marius v.
Bigelow V. Draper (N. Dak.) 41,
45, 74, 75, 173, 520, 773
Big Four etc. Co., Oviatt v.
Biggs V. Utah etc. Co. (Ariz.)

132, 291, 294, 333, 389, 622
Big Horn Basin etc. Co., Howell v.
Big Indian etc. Co., Ames etc.

Co. V.
Big Rock etc. Co., Boehmer v.
Big Sandy etc. Co., Lincoln etc.

Co. V.
Bijou Co., Lower Latham Co. v,
Bilen v. Paisley (Or.) 256

Bingham Bros. v. Port Arthur

etc. Co. (Tex.) 436, 451, 519

Binninger, Heintzen v.
Bird, Dick v.
Bird, Packer v.
Bird, Pocantico Waterworks Co.

Birdseye, Quigley v.

Birks & Wilts Canal Co. v, Swin-
don W. W. etc. Co. (Eng.) 408

Bishop, Garrett v.

Bixler's Appeal (Cal.) 178

Bixler v. Board of Supervisors
(Cal.) 178

Black V. Elkhorn M. Co. (U. S.)

345, 363

Black Diamond Coal Co., Robin-
son V.

Blackman. Hall v.

Page

Black Rock Co., Miller v.
Blair, City of Telluride v.
Blake ▼. Boye (Colo.) 145, 146,
220, 230, 231, 338, 339
Blake, Heyneman v.
Bkke, Loud Gold M. Co. v.
Blake, People v.
Blakely v. Ft. Lyons etc. Co.

(Colo.) 263, 310, 323, 334, 631
Blankenship v. Whaley (Cal.) 324,

344

Bledsoe v. Decrow (Cal.; 205, 263.

264, 322

Bliss v. Kennedy (HI.) 409

Bliss V. Kingdom (Cal.) 231

Bloan V. Glancy (Mont.) 342

Bloom V. West (Colo.) 97, 340, 343

Blundell, Acton v.

Board etc. Co^ Fravert v.

Board etc. v. Hutchinson (Or.) 287

Board etc. v. Wheeler (Colo.) 596

Board of Assessment, State v.

Board of Commrs. etc., Chew v.

Board of County Com., Chap-
man v.

Board of County Conu, Monta-
gue V.

Board of Directors, Ahem v.

Board of Directors v. Collins
(Neb.) 652, 754

Board of Directors v. Peterson
(Wash.) 653, 794

Board of Directors v. Tregea
(Cal.) 648, 649, 651

Board of Directors v. Tregea
(U. S.) 649

Board of Supervisors, Bixler v.

Board of Supervisors, Cosner v.

Board of Supervisors, Ferran v.

Board of Supervisors, Hagar v.

Board of Supervisors, Nevada
Bank v.

Board of Supervisors, Ralston v.

Board of Supervisors v. Thomp-
son (Fed.) 650

Board of Supervisors, Williams
v.

Boehmer v. Big Rock etc. Co.
(Cal.) 473, 477, 479, 483

Boggs V. Merced Min. Co.
(Cal.) . 19, 248

Boglino V. Giorgetta (Colo.) 122, 145

Boise City, Eioise etc. v.

Boise City Irr. Co. v. Clarke
(Fed.) 637

Boise etc. Co., Bardsley v.

Boise etc. v. Boise City (Fed.) 626.

632

Boise etc. Co., Hard v.

TABLE OF CASES.

Page

Boise etc. Co., Hard ▼.
Boise etc. Co., McCarthy v.
Boise etc. Co. v, Stewart

(Idaho) 44, 50, 120, 127, 218,

240, 293, 295, 608, 615, 726, 741
Boise, Nampa etc. Dist. v.
Boles, Bear Biver etc. Co. v.
Botigno V. Giorgetta (Colo.) 231
Bolsa etc. Co. v. Burdick (Cal.)

151, 168
Bolter V. Garrett (Or.) 98, 264, 288,

384
Bonomi, Backhouse v.
Booth V. Chapman (Cal.) 121, 337,

339
Booth, Modoc etc., Co. v.
Boqnillas Land Co. y. Curtis

(Arir.) 5, 44, 71, 81, 83, 116, 732
Borda, People v.
Borden v. Trespalacios Bice

etc. Co. (Tex.) 390, 391, 392

• Boekowitz v. Thompson (Cal.) 649
Boston & Bozbury Mill Co. v.

Newman (Mass.) 398

Boston Dock Co., Gould ▼.•
Bothwell V. Consumers' Co.

(Ida.) 637

Boalder etc. Co., Floyd v.
Boulder etc. Co. v. Leggett etc.

Co. (Colo.) 350, 352

Boulder etc. Co. v. Lower etc.

Co, (Colo.) 616

Boulware v. Parke (Idaho) 612
Boulware, Parke v.
Bountiful City, Ksher v.
Bowker, Dalton v.
Bowlby, Shively v.
Bowler, Countess of Butland ▼.
Bowler, Butland v.
Bowling Coal Co. v. Buffner

(Tenn.) 302

Bowman v. Bowman (Or.) 264, 27^,

377, 380
Bowman v. Virdin (Colo.) 334, 335
Boyce ▼. Cupper (Or.) 41, 167, 377,

476, 498, 550
Boyd, Horbach v.
Boye, Blake v.
Boyer, Bristol etc. Co. v.
Boyle, Foreman v.
Boynton v. Longley (Nev.) 176, 372,

374
Bozeman Water Co. Creek v.
Bradford, American etc. Co. v.
Bradford Corporation v. Per-

rand (Eng.) 439

Bradley v. Fallbrook Irr. Dist.

(Fed.) 66, 648, 650

Bradley, Fallbrook Irr. Dist. v.

Bag-e

Bradley v. Harkness (Cal.) 131
Bradley v. New York etc. B.

Co. (Conn.) 398

Branagan v. Dulaney (Colo.) 144
Brandon, Bialto Irr. Co. v.
Bree v. Wheeler (Cal.) 324, 333,

375, 376
Breedlove v. Norwich etc. Ins.

Soc. (Cal.) 611

Briggs V. Murray (Wash.) 343
Briggs, Murray y.

Brinegar y. Copass (Neb.) 165

Bristol etc. Co. y. Boyer (ind.) 446
Britt V. Beed (Or.^ 41, 110, 376

Brittain v. Conn (Or.) 376

Broadbent y. Bamsbotham

(Eng.) 164

Broadmoor etc. Co. y. Brookside

etc. Co. (Colo.) 93, 106, 107, 263,
323, 334, 473, 474, 737
Brockman y. Grand Canal Co.

(Ariz.) 350, 351

Broder y. Natoma Water Co.

(Cal.) 109

Broder y. Natoma Water Co.

(U. 8.) 26, 46, 48, 109, 110, 140,

192
Brooklyn, Merrick W. Co. y.
Brooklyn, Smith y.
Brookside etc. Co., Broadmoor

etc Co. V.
Brosnan y. Harris (Or.) 110, 163,

176, 462
BroBsard y. Morgan (Idaho) 377
Brown v. Ashley (Ney.) 312

Brown y. Blaker (Or.) 41, 159, 197,

271, 309
Brown, Baker y.

Brown y. Best (Enff.) 174, 436

Brown y. Collins (N. H.) 466

Brown y. Cooper (Iowa) 131

Brown y. Farmers' High Line

Canal Co. (Colo.) 108, 109

Brown, Frazier y.

Brown y. Gerald (Me.) 392, 397
Brown v. Gold Coin Min. Co.

(Or.) 303, 316, 383, 384, 609

Brown y. Hlius (Conn.) 306

Brown, McGuire y.
Brown y. Mullin (Cal.) 300

Brown y. Newell (Idaho) 186, 206

269, 272
Brown y. Smith (Cal.) 98, 300, 313
Brown, State y.
Brown, Strait y.
Brown, Wadsworth etc. Co. y.
Brown, Woodward y.
Brown etc. Ditch Co.. Patterson y.
Browning y. Lewis (Or.) 262, 309

zzxii

TABLE OF CASES.

Page

Brown Valley Irr. IHst.) PeoDle v,
Bruce v. Delaware & Huoson

Canal Co. (N. Y.) 318

Brummitt v. Ogden W. W. Co.

(Utah) 135, 632

Brunner, Salt Union etc. v.
Brjanty Authors v.
Buchanan, Losee v.
Buckers etc. Co. v. Farmers'

etc. Co. (Colo.) 309, 310, 350, 359,

537, 610, 617
Buckers etc. Co. v. Platte etc.

Co. (Colo.) 167

Buckers etc. Co., Platte etc. Co. v.
Budge, Bear Lake v.
Buffalo etc. Co., X. Y. etc. Co. ▼.
Bull, Bauers v.
Bullerdick v.' Hermsmeyer

(Mont.) 342

Bumpus, Stone v.
Bunker Hill etc. Co., Last

Chance etc. Co. y.
Bunker Hill etc. Co» McCarthy v.
Burbank y. West Walker B. D.

Co. (Ney.) '259

Burdge y. Smith (Cal.) 141

Burdge y. Underwood (Cal.) 19

Burdick,. Bolsa etc. Co. y.
Burger, Reclamation Dist. y.
Burkhart v. Meiberg (Colo.) 247,
248, 263, 265, 309, 310
Burnett, Hart y.
Burnett y. Whiteside (Cal.) 359,

360
Bumham y. Freeman (Colo.) 128,

337
Burnside, Parke y.
Bumside, Pyke y.
Bums, Kerr y.

Burr y. Maclay B. Co. (Cal.) 492,

551, 566, 573, 574
Burris y. People's Ditch Co.

(Cal.) 230, 256, 286, 287, 372

Burrows y. Burrows (Cal.) 109,

184, 185, 211
Burrows, Burrows y.
Burrows y. Fox (Cal.) 328

Burson, Southside etc. Co. y.
Bush, Gregory y.
Butler, County of Sierra y.
Butte etc. Co., Miles y.
Butte etc. Co. y. Morgan (Cal.)

291, 330
Butte etc. Co., Talbot y.
Butte etc. Co. y. Vaughn (Cal.)

121, 205, 299, 301, 359, 360, 361,

588
Butterfield y. O'NeiU (Colo.) 350

Pag«
Butterfield M. Co., Herrinian

Irr. Co. y.
Buzard, Hayes y.
By bee y. Oregon etc. Co. (U. S.)

48, 114, 182

Cache La Poudre Co. y. Hawley
(Colo.) 595, 596

Cache La Poudre Co. y. Larimer
Water Sup. Co. (Colo.) 97, 100,
103, 253, 268, 284, 288, 292, 295,

343, 353, 623

Cache La Poudre etc. Co., Lari-
mer etc. Co. V.

Cache La Poudre y. Windsor Co.
(Colo.) 198

Cache Valley Co., Creer y.

Cahill y. Eastman (Minn.) 256

Caldwell, Dick y.

Caldwell, Dyke y.

Caldwell, Mosier y.

Caldwell^ Wholey y.

California etc. Co. y. Enterprise
etc. Co.^ (Fed.) 40, 319, 450, 470,

496, 504

California etc. Co. y. Pastoral
etc. Co. (Fed.) 516

California Pastoral Oo. y. Ma-
dera Canal Co. (Cal.) 378

California Pastoral Co. y. Whit-
son (Cal.) 179

Calkins, Cardoza y.

Calkins y. Sorosis Fruit Co.
(Cal.) 125, 268, 333, 334, 339,

341,424

Cambridge, Clark y.

Cambridge, Gray y.

Campbell y. Bear Biyer Co.
(Cal.) 257

Campbell y. Grimes (Kan.) 40, 470

Campbell, Kaler y.

Campbell, Malad Val. Lrr. Co. y.

Campbell, Pioneer Irr. Dist. y.

Campbell, Toohey v.

Campbell y. West (Cal.) 230

Campton, Hicks y.

Canal Co., Mitchell y.

Canal Co. y. Shugar (Eng.) 538

Candelaria y. VaUejos (N.
Mex.) 626

Candler y. Washoe Lake etc
Ditch Co. (Ney.) . 328

Cannovan, Keane y.

Cape y. Thompson (Tex.) 41

Cardelli y. Comstook Co. (Key.)

247, 251

Cardelli, Gotelli y..

Cardoza y. Calkins (Cal.) 185

TABLE OF CASES.

Page

Oardwell v. Sacramento (Cal.) 168

Carey v. Daniels (Mass.) 421

CariUo, Keeney v.

Carillo, Kennedy v.

Carleton, Allard v.

Carney, Pence v.

CarottOi Green v.

Carpenter, Ashenfelter v.

Carpenter, Farm Inv. Co. v.

Carpenter, Hallett v.

Carpenter, Ophir etc. Co. v.

Carpy v. Dowdell (Cal.) 387

Carrol, Leggat v.

• Carroll v. Vance (Colo.) 326

Carron v. Wood (Mont.) 278, 316
Carson v. Qentner (Or.) 41, 110,

141, 320

Carson v. Hayes (Or.) 303, 384, 385

Carter, HaD v.

Carter, McShane v.

Carat hers v. Pemberton (Mont.)

262
Caruthers v. Phil. Co. (Pa.) 243
Case V. Hoffman (Wis.) 166

Casey, Tolman v.

Cash V. Thornton (Cplo.) 213

Castle Bock etc. Co. v. Jurisch

(Neb.) 401

CatUn etc. Co. v. Best (Colo.) 257
Cave V. Crafts (Cal.) 197, 254, 295,

322, 342, 375, 376
Cave V. Tyler (Cal.) 99, 133, 140,

141, 143, 149, 150, 155, 158, 159,

380, 518, 557

Cavenders Cr. M. Co., Chestatee

Pyrites Co. v.
Cederburg v. Dutra (Cal.) . 164, 176
Center Creek etc. Co. v. Lindsay

(Utah) 374, 377

Central etc. By. Co., Consoli-
dated etc. Co. V.
Central Irr. Dist., In re (Cal.) 649
Central Irr. Dist. v. De Lappe

(Gal.) 648, 649

Central- Trust Co. v. Culver

(Colo.) 352

Central Trust Co., Platte Valley

etc. Co. V.
Chamberlain v. Anter (Colo.)

341

Chandler, Austin v.

Chandler, Bamsay ▼.

Chanalor, Walker v.

Chapman v. Board of County

Com. of Phillips Co. (Colo.) 596
Chapman, Booth ▼.
Chapnaan, Western Irr. Co. v.

Page
Chapman, Tuolumne etc. Co. v.
Chai^oek v. Higuerra (Cal.) 285,
291, 322, 469, 470, 475, 482
Charnock v. Bose (Cal.) 592, 599
Chase, Gillis v.
. Chasemore v. Bichards (Eng.)

434, 435, 438, 550, 554, 575, 577,

581
Chauvet v. Hill (Cal.) 370, 450,

454, 473, 480, 514
Chesley v. King (Me.) 575

Chessman ▼. Hale (Mont.) 327, 372,

381
Chestatee Pyrites Co. v. Caven-
ders Cr. M. Co. (Ga.) 402
Chew V. Board of Commrs. etc.

(Colo.) 596

Chew, Esmond v.
Chew, Fort Lyon etc. Co. v,
Chiatovich v. Davis (Nev.) 97, 345
Chicago etc. Co., Fairbury etc.

Co. V.
Chicago etc. Co., Morrissey v.
Chicago etc. By. Co. v. People

(111.) 624

Chicago By. Co. v. Groves

(Okla.) 176

Chicago By. Co., Vincent v.
Chidester v. Consolidated D. Co.

(Cal.) 259

Child V. Whitman (Colo.) 337, 341
Childs, Travelers' Ins. Co. v.
Choussard) Haas v.
Church V. StUlwell (Colo.) 263, 327,

372
Church, Womersley v.
Churchill v. Baumann (Cal.) 383,

444
ChurchUl v. Lauer (Cal.) 165

Churchill v. Louie (Cal.) 370, 376
Churchill v. Bose (Cal.) 359, 360
Churchill v. Bussell (Cal.) 323, 344
Citizens ^ etc. Co., Ketchikan

etc. Co. V.
Citizens' etc. Co., Sheward v.
City of Atcheson, Parker v.
City of Dawson, Hamby v.
City of Guthrie, Markwardt v.
City of Hollywood, Colegrove

Water Co. v.
City of Jonia, Hall v.
City of Oakland, People v.
City of Paterson, Doremub v.
City of Perry, Willis v.
City of Bochester, Smith v.
City of San Luis Obispo, People

v.
City of Seattle, Aylmore v.

TABLE OF CASES.

Pag«

City of Syracuse, Sweet ▼.

City of York, Todd ▼.

Clare v. Sacramento Elec. etc.

Co. (Cal.) 179

Clark V. Allaman (Kan.) 34, 40,

412, 477, 480, 495, 518
Clark V. Ashley (Colo.) 72, 252,

309, 310, 376, 377, 543
Clark V. Cambridge etc. Irr. Co.

(Neb.) 41, 52, 511

Clark v. Lawrence (Eng.) 306

Clark V. Lumber Co. (Misa.) 579

Clark V. Nash (U. S.) 44, 47, 48,

83, 89, 148, 207, 208, 392, 401, 523,

525
Clark, Nash v.
Clark, Taughenbaugh v.
Clark V. Willett (Cal.) 230, 312,

314, 318

Clarke, Boise City Irr. Co. v.
Olear Cr. etc. Co., Knowles v.
Clear Lake etc. Co., Moore v.
Cleghorn's Appeal (Hawaii) 602,

803
Cleghorn, Barstow Irr. Co. v.
Clements ▼. Watkins Land Co.
(Tex.) 41

Clements, Watkins L. Co. v.

Cleveland, Willson v.

Cleveland etc. By, Co., Postal

Tel. Co. V.
Clifford V. Larrieu (Ariz.) 307, 646
Cline V. Stock (Neb.) 41, 172, 314,

396, 442, 458, 461, 495, 517, 524,

526

Cline, Tampa W. W. Co. v.
Cloke, County of Yuba v.
Clough, Cox V.

Clough V. Wing (Ariz.) 44, 69, 313,

634, 732

Clyne v. Benicia Water Co.

(Cal.) 325, 336, 340, 341, 342,
Cochell, Todd v.

Cocker v. Cowper (Eng.) 427

Coffey, Meng v.
Coffin V. Left Hand Ditch Co.

(Colo.) 43, 44, 68, 97, 125, 281,

288, 291, 292, 293, 737

Coffman v. Bobbins (Or.) 41, 323,

464

Coghill, People v.

Coghill, Beclamation Dist. v.

Cohen, Knight v.

Cohen v. La Canada Water Co.
(Cal.) 163, 452, 473, 496, 540,
544, 546, 547, 551, 560, 565, 572,

574, 587

Page

Cole V. Logan (Or.) 200, 203, 264,

272, 275, 288
Cole v. Missouri Co. (Okla.) 176
Cole V. Bichards Irr. Co. (Utah)

44, 167, 177
Cole, Turner v.
Colegrove, Dickerson v.
Colegrove Water Co. v. City of

Hollywood (Cal.) 255, 286, 287
Coleman v. Le Franc (Cal.) 285.

469, 503, 505, 512
Cole Silver M. Co. v. Virginia

etc. Co. (Fed.) 316, 534, 581

Colimas, Pico v.
College etc. Co., Niagara etc. Co.

Collins, Board of Directors v.
Collins, Brown v.

Collins V. Gray (Cal.) 269, 277, 278,

374, 375, 376
Collins, Pogue v.
Colohan, Shook v.
Colonial etc. Co., Beyers v.
Colorado, Kansas v.
Colorado City, Colorado Springs

Colorado etc. Co. ▼. Larimer Irr.

Co. (Colo.) 97, 107, 287,

Colorado etc. Co. v. McFarland

(Tex.) 390, 626, 634,

Colorado etc, Co. v. Bocky Ford

C. B. L. L. ft T. Co. (Colo.)
202, 203, 338, 353,
Colorado etc. Co.^ Smith etc. Co.

Colorado Springs y. Colorado

City (Colo.)
Colorado Springs, Stickler v.
Columbia Min. Co. v. Holter

(Mont.) 195, 288,

Colusa etc. Co., Watson v.
Combs V. Farmers' etc. Co.

(Colo.) 49, 212, 213, 245,

608, 609, 610, 611, 622, 641,

645,
Commissioners, Mayor ▼.
Commissioners of Hoek v. Hugo

(Eng.)
Commissioners of Sydney, Lord v.
Comstock, Crippen v.
Comstock Co., Cardelli v.
Conant v. Deep Creek Co.

(Utah) 172,

Conant v. Jones (Idaho) 200,

Conger v. Weaver (Cal.) 16,
65, 97, 105, 128, 182,
Conger, Weaver v.

297

635

200,
357

135

289

263,
643.
646

416

322
269,
272
35,
189

TABLE OP CASES.

XXXV

Page

Conhftm v. Fisk (Eng.) 407

Conkling v. Paeific ete. Co.

(Cal.) 116, 312, 380, 449, 499

Conley v. Dyer (Colo.) 618

Conn, Brittain v.
Conn, Jones v.
Connera, Ogbam v.
Conrad v. Arrowhead ete. Hotel

Co. (Cal.) 305, 306

Conradt ▼. Hill (Cal.) 295, 340, 382
Conroy, Yocco v.

Consolidated ete. Co. ▼. Central

etc. By. Co. (Cal.) 390

Consolidated etc. Co., Chldester

Consolidated etc. Co. y. Hamlin
(Colo.) 258

Consolidated etc. Co. v. New
Loveland etc. (Colo.) 618

Consolidated etc. Co., New Love-
land etc. Co. V.

Consumers Co., Bothwell ▼.

Cook, Hargrave v.

Cook, Anderson v.

Cooke, Faull ▼.

Coombs V. Slayton (Or.) 324

Coon, Noland v.

Cooper, Brown v.

Cooper V. Shannon (Colo.) 131, 263,
341, 342, 350, 351, 635
Copper etc. Co. v. Wabash etc.

Co. (Fed.) 543, 581

Copass, Brinegar v.
Corbit, Smith v.
Corbley, Norman v.
Cordoza v. Calkins (Cal.) 194, 195
Coming V. Troy Iron Co. (N.

Y.) 515

Correa v. Frietas (Cal.) 151, 198,

247, 357
Correth, Telle v.
Cosner ▼. Board of Supervisors

(Cal.) 178

Cotton, Mason v.
Coughanour, North Powder M.

Co. V.
Council etc. Co., Shamleffer v.
Countess of Rutland v. Bowler

(Eng.) 406

County etc. Co., Iiamar etc. Co.

County of Sierra v. Butler (Cal.)

303

County of Sutter v. Nichols

(Cal.) 304, 390

County of Yuba v. Cloke (Cal.)

303

• Page

County of Yuba v. Kate Hayes
etc. Co. (Cal.) 303

Courthouse etc. Co. v. Willard
(Neb.) 264, 267

Coventon v. Seufert (Or.) 295, 324,

&42, 379

Cowan, Shipley v.

Cowles V. Kidder (N. H.) 409

Cowper, Cocker v.

Cowper, Cueker v.

Cox V. Bernard (Or.) 41, 517

Cox V. Clough (Oal.) 369, 375

Cox, Daley v.

Cozad etc. Co., Farmers' etc. Co.

Cozzens v. N. Fork D. Co. (Cal.)

626, 630
Crafton etc. Co., Craig v.
Crafts, Cave v.
Craig V. Crafton etc. Co. (Cal.)

291, 308, 309, 322, 468, 544
Craine v. Winsor (Idaho) 304

Crall V. Peso Irr. Dist. (Cal.) 648,

650
Crandall v. Woods (Cal.) 14, 35,

36, 40, 108, 112, 113, 118, 187, 449,

454
Crane, Hughson v.
Crane, Lakeside Ditch Co. v.
Crane v. Winsor (Utah) 195, 197
Crary, Union Water etc. Co. v.
Crary, Yankee Jim etc. Co. v.
Crawford v. Minnesota etc. Co.

(Mont.) 340, 342

Crawford etc Co. v. Hathway

(Neb.) 15, 31, 41, 50, 51, 52, 64,

79, 81, 106, 107, 112, 114, 124, 235,

327, 396, 398, 402, 422, 437, 447,

451, 454, 457, 473, 476, 495, 504,

518, 520, 521, 523, 524, 602, 603,

752, 753
Crawford etc. Co.j Needle Bock

etc. Co. V.
Creary, Dougherty v.
Creek v. Bozeman Water Co.

(Mont.) 100, 253, 264, 339

Creer v. Bancroft etc. Co.

(Idaho) 322, 325, 641, 645, 646

Creer v. Cache Valley Co.

(Idaho) 254

Crelghton v. Evans (Cal.) 37, 312,

380, 493
Oreighton v. Kaweah Co. (Cal.)

247, 359, 362
Crescent etc. Co. v. Montgomery

(Cal.) 283

Crescent etc. Co. v. Silver King

etc. Co. (Utah) 248, 251, 381, 550

TABLE OF CASES.

• Page

Crews, MeCook ete. v.
Crippen V. Comstock (Colo.) 295,

341
Crippen V. Glascow (Colo.) 288,

290, 309, 310
Crippen V. White (Colo.) 44, 733,

737
Crippen V. X. Y. Z. Ditch Co.

(Colo.) 323, 609, 615, 618

Crisman v. Heiderer (Colo.) 43,

44, 145, 389
Crocker etc. Co., Dennis v.
Crook V. Hewitt (Wash.) 42, 510

Crooker v. Benton (Cal.) 295, 340
Crookston etc. Co., Erickson v.
Cross V. Kitts (Cal.) 341, 342, 534,

542, 551, 555, 581, 582
Crothers, Wolf v.
Crow V. San Joaqain etc. Co.

(Cal.) 626, 635

Crow, Waring v.

Cruse V. McCanley (Fed.) 41, 63,
77, 116, 117, 189, 203, 495
Oueker v. Cowper (Eng.) i07

CuUen V. Glendora W. Co. (Cal.)

649

Culver. Central Trust Co. v.

Cummings v. Hyatt (NeK.) 593

Cummings, McDaniel v.

Cummings, Payne v.

Cunningham, O'Keiffe v.

Cupper, Boyce v.

Curtis, Boquillas Land Co. v.

Curtis, De Necochea v.

Curtis V. La Grande Co. (Or.) 376

Curtis, Putnam v.

Cushman v. Highland Ditch Co.

(Colo.) 313

Cyclone D. Co., Lone Tree D. Co.

Daley v. Cox (Cal.) 599, 604

Dalton V. Angus (Eng.) 439

Dalton V. Bowker (Nev.) 442

Daly, Bellevue v.

Daly V. Ruddell (Cal.) 103, 266
Dangberg, Union Min. Co. v.
Daniels, Carey v.
Davis, Chiatovich v.
Davis, City of Telluride v.
Davis, Fleming v.

Davis V. Frey (Okla.) 176

Davis V. Gale (Cal.) 130, 282, 283,

291. 293, 296, 338, 339, 352, 353,

357, 359, 369, 375
Davis, International etc. By. v.
Davis, Sand Creek etc. Co. v.
Davis, Struby etc. Co. v.
Davis, Wyandouch Club v.

Page

Day, Jacob v.

Davton Min.. Co. v. Seawell

(Nev.) 392, 396

Deadwood etc. Co. v. Barker (S.

Dak.) 590

Deardorfif, Jones v.
De Baker v. Southern Cal. By.

Co. (Cal.) 300

De Boca v. Pueblo (N. Mez.) 5

Decker v. Perry (Cal.) 650

Decker, Willey v. .
Decrow, Bledsoe v.
Deep Creek Co., Conant v.
De Freitas, Suisun v.
De GraflPenried v. Savage (Colo.)

392
De Lappe, Central Irr. Dist. v.
Delaware & Hudson Canal Co.

Bruce v.
Delhi v. Youmans (N. Y.) 538, 575
Delmue, Bonnow v.
Del Ponte, Higuero v.
Demarris, Harrington v.
De Necochea v. Curtis (Cal.) 109,

130, 183, 184, 185, 189, 192, 194,
201, 203, 210, 211, 364
Denni£F, Smith v.
Dennis v. Crocker etc. Co. (CaL)

328
Denver, City of, v. Denver etc.

Co. (Colo.) 632

Denver, City of, v. Mullen (Colo.)

257
Denver etc. Co., City of Denver v.
Denver etc. Co. v. Denver etc.

6o. (Colo.) 310, 397, 402, 403

Denver etc. Co. v. Dotson (Colo.)

186» 218, 328
Deseret etc. Co. v. Melntire

(Utah) 311, 325

Despain, Tynon v.
Devine v.* Los Angeles (IT. S.) 4
De Witt, Amador etc. Co. v.
Diaz Lick v.

Dick V. Bird (Nev.) 195, 197

Dick V. CaldweU (Nev.) 195, 197
Dickerson v. Colegrove (TJ. S.) 387
Dickey, Fredrick v.
Dickey v. Maddux (Wash.) 45, 162,

247

Dickinson v. Grand Junction etc,
Co. (Eng.) 586

Diersen, Guynn v.

Dillon V. Acme Oil Co. (N. Y.) 306

Dillon etc. Co., Beaverhead etc.
Co. V.

Directors v. Abila (Cal.) 649

District Court, State v.

Dixon, Gray v.

Dixon, Ortman v.

^ih

TABLE OF CASES.

Dixon V.

Page
Schermeier (Cal.) 230

232, 340

Dodge V. Harden (Or.) 110, 295. 340,
351, 352, 366, 367, 368, 374

Dodge, Shotwell v.

Doe, Smith v.

Dandero ▼. O'Hara (Gal.) 230

Doremns v. Citj of Paterson (N.
J.) 446

Dorr V. Hammond (Gal.) 351, 352.

354

Dorris V. SuUivan (Gal.) 127, 244,

323, 327, 337, 638

Dotson, Denver etc. Co. v.

Dougherty v. Cref^y (Cal.) 247,

357, 358

Dougherty v. Haggin (Cal.) 263,

277, 513

Douglas, Miller v.

DowdeU, Carpy v.

Dower y. Richards (Cal.) 390

Downer, Sterling Irr. Co. v.

Downey r. Twin Lakee Co.
(Colo.) 631

Downing v. Moore (Colo.) 208, 401

Doyle y. San Diego Co. (Fed.) 121

Drake v. Earhart (Idaho) 29, 40, 70,

98, 263, 268, 327, 339

Drake, Orande Bonde etc. Co. v.

Draper, Bigelow v.

Driscoll, Logan v.

Dmley v. Adam (HI.) 42

Dryden, Pearson v.

Dn Bey, Miles v.

Duckworth v. Watsonville Water
Go. (Cal.) 40, 65, 93, 101, 113,
115, 120, 123, 134, 143, 161, 154,
155, 167, 177, 191, 195, 236, 309,
310, 322, 373, 384, 409, 429, 438,
441, 445, 447, 449, 452, 463, 454,
473, 493, 499, 515, 519

Dufour, Southern Pac. Co. ▼.

Bnlaney, Branagan v.

Damont v. Kellog (Mich.) 408

Dunbar, Fresno Canal Go. v.

Duncan, Seaward v.

Donning, Kelly v.

Donniway v. Lawson (Idaho) 97,

100

Dunn V. Thomas (Neb.) 41, 518

Dunphy, Sullivan v.

Dnnsmuir v. Port Angeles Co.
(Wash.) 239, 240

Dunster, Lord v.

Durango, Junction etc. Co. v.

Durfee v. Garvey (Cal.) 256

Durkee, Peterson v.

Dnrga v. Lincoln etc. Co.
(Wash.) 384, 458

Dutra, Cederburg v.

Dyer, Gonley v.

Dyke v. Caldwell (Ariz.)

Pag«

202

Earhart, Drake v.

East, Houston Ry. Co. v.

Eastman, Cahill v.

East Bedlands etc. Co. Bichey v.

East Biverside Irr. Dist., FudUckar v.

East Biverside Irr. Dist., Wright v.

Eaton, Gould v.

Eaton, Hoge v.

Eaton V. Larimer etc. Go. (Colo.)

622
Eddy V. Simpson (Gal.) 8, 120, 121,

196, 205, 235, 357
Edes, Wood v.

Edgar v. Stevenson (Gal.) 100, 133,
' 154, 300, 504

Edwards v. Allonez Co. (Mich.) 318
Edwards, North Fork etc. Co. v.
Egan V. Estrada (Ariz.) 380

Eidemiller Ice Co. v. Guthrie

(Neb.) 41

Elam, Ex parte (Cal.) 252, 547, 551,

567, 714
El Dorado Water Co., Osgood v.
Elkhom M. Co. Black v.
Elk Biver etc. Co., People v.
Ellinghouse v. Taylor (Mont.) 392,

396
Elliott V. Fitchburg By. (Mass.)

235, 359, 411, 421, 439, 446, 464,

488, 491, 494, 495
Elliott, Judkins v.
Elliott, Supply etc. Co. v.
Elliott V. Whitmore (Utah) 125,

269, 292, 316
Ellis V. Pomeroy Improvement

Co. (Wash.) 42, 116

Ellis V. Tone (Cal.) 308, 462

Elmhurst v. Spencer (Eng.) 412

Elphinston, Magistrates v.
Ely V. Ferguson (Gal.) 163, 561
Emanuel, Mobile v.
Embrey v. Owen (Eng.) 235, 236,

407, 411, 419, 421, 422, 424, 428,
439, 464, 465, 489, 501
Emerson, Walker v.
Emery, Van Gamp v.
Emigrant D. Co., Last Chance

etc. Co. V.
Emigrant D. Co., Lillis v. ,
Emporia v. Soden (Kan.) 519

Englehardt, Mesnager v.
English V. Metropolitan etc. Co.

(Eng.) 538

Enright, Santa Cruz v.
Enterprise Co., Miller v.

vin

TABLE OF CASES.

Pag«

Enterprise etc. Co., California

etc. Co. V.
Ennor v. Baine (Nev.) 97, 330

Equitable etc. Co., Berry v.
Equitable etc. Co. v. Montroae

etc. Co. (Colo.) 306

Erickson v. Crookston etc. Co.

(Minn.) 547, 578, 579 586

Escondido Irr. Dist^ Merchants^

Bank v.
Escondido Seminary, Escondido

St. 8. Dist. V.
Escondido St. S. Dist. v. Escon-
dido Seminary (Cal.) 650
Eslava, Mobile v.

Esmond v. Chew (Cal.) 97, 302

Estate of Thomas
Estrada, Egan v.
Estrada, Sui Luis W. Co. v.
Etiwanda Water Co., Wood v.
Eubrich v. Bichter (Wis.) 163,

Bufaula Water Co., Ulbricht v.
Eureka etc. Co., Weaver v.
Eureka Lake etc. Co. v. Superior

Court (Cal.) 303

Evans, Creighton v.
Evans, McGillivray v.
Evans, Reclamation Dist. v.
Evans v. Ross (Cal.) 315, 369, 371
Evans v. Scott (Tex.) 374

Evans v. Swan (Colo.) 610, 611

Everet etc. Co. v. Powers (Wash-.)

254
Everett v. Hydraulic Co. (Cal.)

257
Ewing, Mott V.

Ewing V. Rhea (Or.) 384

Ex parte Elam
Ex parte Maier
Extension Ditch Co., Young v.

Fairbanks v. Rollins (Cal.) 333

Fairbury etc. Co. v. Chicago etc.
Co. (Neb.) 259

Fairhaven L. Co., New What-
com V.

Fairplay etc. Co. v. Weston
(Colo.) 247, 251

Falk, Quirk v.

Fallbrook Irr. Dist. v. Bradley
(U. S.) 56, 388, 389, 391, 392, 395,

400, 622, 648, 650

FallbrooK Irr. Dist., Bradley v.

Fallon V. O'Brien (Eng.) 239, 240,

243

Fall River etc. Co., Sherman v.

Fallsburg Power Mfg. Co. v.
Alexander (W. Va.) 392

Falmouth, Frankum v.

Fancher, Metcalfe v.

Farley v. Spring Valley etc. Co.

(Cal.) 116

Farmer v. Stillwater Co. (Minn.)

578
Farmer, Stillwater Co. v.
Farmer v. Ukiah W. Co. (CaL) 341,

342
Farmers ' Co. v. Riverside Irr. D.

(Idaho) 615, 641, 646

Farmers' etc. Co., Ada etc. Co. v.
Farmers' etc. Co. v. Agrieoltu-

ral Ditch Co. (Colo.) 108, 212,
307, 592, 600, 611, 612, 626, 646
Farmers' Irr. Dist., Baltes v.
Farmers' etc. Co., Buckers v.
Farmers' etc. Co., Combs v.
Farmers' etc. Co. v. Cozad etc

Co. (Neb.) 592, 602

Farmers' Irr. Dist. v. Frank

(Neb.) 31, 51, 125, 217, 264, 266,

294, 351, 366, 602, 603, 626, 641,

643, 652, 751
Farmers' etc. Co. v. Gothenburg

etc. Co. (Neb.) 288, 291, 292, 296
Farmers' etc. Assn., Hottell v.
Farmers' etc. Co. v. Maxwell

(Colo.) 596

Farmers' etc. Co. v. New Hamp-
shire etc. Co. (Colo.) 127, 244,

351, 644
Farmers' etc. Co., People v.
Fartoiers' etc. Co. v. Rio Grande

etc. Co. (Colo.) 196, 263, 271, 328,

357, 360, 616, 617
Farmers ' etc. Co., Shelby v.
Farmers' etc. Co. v. Sonthworth

(Colo.) 74, 108, 181, 197, 200, 213,
247, 633, 643, 644, 645
. Farmers' etc. Co., Standart v.
Farmers' etc. Co. v. White

(Colo.) 108, 109, 645, 646

Farmers' etc. Co., White v.
Farmers' High Line Canal Co.,

Brown v.
Farm Inv. Co. v. Alta etc. Co.

(Colo.) 135, 338, 344

Farm Inv. Co. v. Carpenter

(Wyo.) 70, 73, 74, 80, 82, 591,

592, 600, 602, 604
Farm Inv. Co. v. Gallup (Wyo.)

341, 343
Farm Inv.* Co., Oligarchy etc.

Co. V.
Faulkner v. Rondoni (Cal.) 109,

112, 300, 369, 371, 380
Faull V. Cooke (Or.) 117, 375

Fayette etc. Co., Bartholomew v.
Feck, Swamp Land Dist. v.

TABLE OP CASES.

Page

Peiffe, Ksher v.

Fehz V. Los Angeles (Cal.) 4

Felt, Stanford v.

Fellows V. Los Angeles (Gal.) 4,

135, 628, 629, 630
Ferguson, Ely ▼.
Fernandez, Hercules W. Co. v.
Fernald, Great Pftlls Mfg. Co. v.
Ferran v. Board of Supervisors

(Cal.) 178

Perrand, Bradford Corporation v.
Ferrea v. Knipe (Cal.) 35, 36, 37,

268, 454, 458, 470
Ferrera, Matthews v.
Ferrin, Stalling v.
Ferris, Union etc. Co. v.
Fife, Manning v.
Fifield V. Spring Valley etc.

Works (Cat.) 380, 450, 503, 504,

505, 518
Fifield, Spring Valley etc. Works

Files, Pollard v.

Fine, Hayes v.

Fisher v. Bountiful City (Utah)

295
Fisher v. Peige (Cal.) 198, 509, 577
Fishmongers' Co., Lyon v.
Fisk, Conhamr v.
Fitchburg By., Elliott v.
FitzeU V. Leaky (Cal.) 340

Fitzgerald v. Urton (Cal.) 19

Flathers, Prescott Irr. Co. v.
Fleming v. Davis (Tex.) 41, 543

Fleming v. Howard (Cal.) 379

Fleming v. Lockwood (Mont.) 257,
Fletcher, Phoenix Water Co. v.
Fletcher v. Bylands (Eng.) 256,

456
Fletcher, Bylands v.
Flickinger v. Shaw (Cal.) 323, 324,

344, 346
Flood, Allen v.
Floyd V. Boulder etc. Co. (Mont.)

191
Fluke V. Pord (Colo.) 288, 289, 290,

323, 610
Flynn, Leonard v.

Pogarty v. Pogarty (Cal.) 381

PorbeU v. N. Y. (N. Y.) 578, 579,

586
Forbes, St. Helena etc. Co. v.
Ford, Fluke v. * ,

Ford, Hobart v.
Fordham v. Northern Pac. By.

Co. (Mont.) 164

Foreman v. Boyle (Cal.) 325

Porker, NippeT v.
Forney, McPhail v.

Page

Port Lyon Co., O'Neil v.

Port Lyons etc. Co. v. Arkansas

etc. (Colo.) 612, 613, 616, 617,

619
Port Lyons etc. Co., Blakely v.
Port Lyons etc. Co. v. Chew

(Colo.) 74, 284, 334

Port Lyons etc. Co., Patterson v.
Port Morgan Co. v. South Platte

D. Co. (Colo.) 97, 212, 339

Port Morgan etc. Co., Upper

Platte etc. Co. v.
Port Plain, Gray v.
Powler V. Wood (Kan.) 517

Powler etc. Canal, Co., Heilbron v.
Fox, Barrows v.
Pox, Burrows v.

Praler v. Sears etc. Co. (Cal.) 256,

258
Prancis, Greenleaf v.
Prancoeur v. Newhouse (Ped.) 379
Frank, Parmers' Irr. Dist. v.
Prank v. Hicks (Wyo.) 125, 129, 295,

339, 343,
Prankum v. Palmouth (Eng.) 407
Praser, Trade Dollar etc. (S). v.
Pravert v. Board etc. Co. (Colo.)

596
Prazier v. Brown (Ohio) 575

Preckleton etc. Co., Orient etc.

Co. V.
Predrick v. Dickey (Cal.) 378, 381
Preed, Thorp v.
Preeman, Bumham v.
Preitas, Correa«v.
Premont, McCarty v.
Prench etc. Co., Gagnon v.
Presno Canal etc. Co. v. Dunbar

(Cal.) 335

Presno etc. Co. v. Presno Canal

etc. Co. (Cal.) 333

Presno Canal etc. Co., Presno etc.

Co. V.
Presno etc. Co. v. Hart (Cal.) 335
Fresno etc. Co., Heinlen v.
Presno Canal Co. v. Parke (Cal.)

332, 335, 627, 628, 632, 633, 636
Presno etc. Co., People's etc. Co. v.
Presno etc. Co. v. Bowell (Cal.)

335, 338
Presno etc. Co. v. Southern

Pacific Co. (Cal.) 320, 523

Presno Flume etc. Co., Sample v.
Presno Irr. Co., Balfour v.
Prey, Davis v.

Prey v. Lowden (Cal.) 131, 322

Prey, Lowden v.
Prey, Ott v.
Prink, Keller v.

TABLE OF CASES.

Page

Frink, Silber v.

Frost V. Alturas etc. Co. (Idaho)

322

Frost, Glaze v.

Fudickar v. East Riverside Irr.

Diat. (Cal.) 128, 244, 344, 638

Fuller .V. Azuza etc. Go. (Cal.) 135,

444, 641, 642
Fuller, Anaheim W. Co. v.
Fuller V. Sharp (Utah) 123, 359

Fuller V. Swan B. Min. Co.

(Colo.) . 288, 291

Fulmer, Williams v.
Fulton V. Methow etc. Co.

(Wash.) 402

Fulton, Wasatch etc. Co. v.
Fulton etc. Co. v. Meadows etc.

Co. (Colo.) 97, 100, 107, 268, 284
Furman, Schenectady v.
Furrow, Rait v.

Gage, Riverside etc. Co. v.
• Gagnon v. French etc. Co. (Ind.)

578, 586
Gale, Davis v.
Gallagher, Basey v.
Gallagher v. Montecito etc. Co.

(Cal.) 296, 369, 374, 517

Gallegos, United- States etc. Co. v.
Gallup, Farm Inv. Co. v.
Gardiner, Hesperia etc. Co. v.
Gardner v. Newberg (N. Y.) 526

Gardner v. Wright (Or.) 103, 264,

266, 267, 276, 277, 278, 313, 370,

371, 372, 379
Garland, Bear Lake etc. Co. v.
Garrett, v. Bishop (Or.) 384

Garrett, Bolter v.
Garrett, Welch v.
Garringer, Woolman v.
Garvey, Durfee v.

Gassert v. Noyes (Mont.) 253, 292,

350
Gaston etc. Min. Co., McCarthy

Gates V. Settlers' Co. (Okla.) 190,

200, 201, 202, 272

Gaved v. Martyn (Eng.) 249

Gearhart, Kimball v.

Geddis v. Parrish (Wash.) . 42, 110,

166, 341, 343, 453

Geertson v. Barrack (Idaho) 197

Gehring, Montana etc. Co. v.

Geiger, Prentice v.

Gel wicks v. Todd (Colo.) 340

Gentner, Carson v.

George v. Robinson (Utah) 342, 623

Gerald, Brown v.

Gibbs V. Williams (Kan.) 165

• Page

Gibson v. Puchta (Cal.) 258, 585
Gilbert, Baxter v.
Gill, Arkwright v.
Gill V. Lydick (Neb.) 41

Gill V. Malan (TJtah) 354, 368

Gillan v. Hutchinson (CaL) 19, 20
Gillespie v. Jones (Cal.) 320

Gillett V. Johnson (Conn.) 462, 464
Gillis V. Chase (N. H.) 446, 495

Oilman v. Tilton (N. H.) 409

Gilmer v. Lime Point (Cal.) 402

Gilmour, Miner v.

Ginocchio v. Amador etc. Co.

(Cal.) 340

Giorgetta, Boglino v.
Glader, Rickey etc^ Co. v.
Glancy, Bloan v.
Glancy, Sloane v.
Glascow, Crippen v.
Glassell v. Verdugo (Cal.) 464

Glaze V. Frost (Or.) 264, 269

Gleason v. Hill (Cal.) 254, 337

Glendora W. Co., Cullen v.
Glide, Barnes v.

Glide V. Superior Court (CaL) 179
Glide, Swamp Land Dist. v.
Gold Coin etc. Co^ Brown v.
Golden etc. Co. v. Superior Court

(Cal.) 303

Goldman, Reclamation Dist. v.
Gold Run etc. Co., People v.
Goodrich, Swift v.
Goodwin, Oury v.
Goodwin, Weed v.

Goon V. Proctor (Mont.) 350, 352
Gordon. Messinger v.
Gorham v. Gross (Mass.) 256

Gorman, Vanderpool v.
Gossert v. Noyes (Mont.) 354

Gotelli V. Cardelli (Nev.) 264, 266.

267, 313, 329

Gothenburg etc. Co., Farmers'

etc. Co. V.
Gould, Barker v.
Gould V. Boston Dock Co.

(Mass.) 409

Gould V. Eaton (Cal.) 235, 329, 422,

443, 447, 464, 470, 473, 493, 499,
535, 536, 542, 551, 555, 566
Gould V. Maricopa etc. Co.

(Ariz.) 125, 245, 294, 350, 352,
626, 629, 641, 643, 644
Gould, Santa Barbara v.
Gould V. Stafford (Cal.) 307, 310,
444, 454, 458, 473, 479, 510
Graff^ Perkins County v.
Graham v. Pasadena (Cal.) 244

TABLE OF CASES.

Page

Graham* v. Bedlands etc. Co.
(Cal.) 254, 255, 638, 641

Grand Canal Co., Brockman v.

Grand Sonde ete. Co. v. Drake
(Or.) 402

Grand Junction etc. Co., Dickin-
son ▼.

Grand Trunk B. B. Co., Arthur

Grand Valley etc. Co. v. Lesher
(Colo.) 623, 644

Grand Valley Irr. Dist., Ander-
son V.

Grant, Alston t.

Gray v. Cambridge (Mass.) 377

Gray, Collins ▼.

Gray v. Dixon (Cal.) 20

Gray v. Ft. Plain (N. Y.) 515

Gray, Beelamation D. v.

Gray v. Williams (CaL) 439

Great Eastern By. Co., Attorney
General v.

Great Eastern By., Kensit v.

Great Falls Mfg. Co. v. Femald
(N. H.) 398

Great Plains etc. Co. v. Lamar
etc. Co. (Colo.) 98, 220

Greeley Irr. Co. v. House (Colo.)

258, 260

Green v. Carotto (Cid.) 164, 240,

247

Green, Smith v.

Green v. Swift (Cal.) 168

Green v. Wilhite (Fed.) 53, 138, 160,

231

Green v. Wilhite (Idaho) 53, 138,

160, 231

Green, Wilterding v,
Greencastle v. Hazelett (Ind.) 306
Greenlaw, National Bank v.
Greenleaf v. Francis (Mass.) 575
Greer v. Heiser (Colo.) 287, 288,

292, 350, 351, 615
Gregg, Parker v.

Greffory v. Bush (Mich.) 163

Gregory v. Harris (Cal.) 302

Gregory v. Nelson (Cal.) 230, 231,

* ^ 256, 287, 317

Greiser, Kleinschmidt v.
Grimes, Campbell v.
Griseza v. Terwilliger (Cal.) 127,
131, 186, 324, 337, 345, 347, 348
Gross, €k>rham ▼.
Groves, Chicago By. v.
Gnerrerio, Saint v.
Guiraud, Thomas v.
Qnlf By., Benjamin v.
Ounn, People v.

Page

Gumsey v. Antelope etc. Co.

(Ckl.) 376, 377, 379

Gutheil etc. Co. v. Montclair

(Colo.) 127, 129

Guthrie, Eidemiller lee Co. v.
Gutierres v. Albuquerque Land

etc. Co. (U. S.) 27, 44, 47, 48, 50,

53, 86, 116, 124, 134, 135, 137, 198,
309, 310, 498, 592, 622
Gutierrez, Albuquerque etc. Co. v.
Gutierrez v. Wege (Cal.) 123, 316,

374, 445, 463, 468, 565
Guynn v. Diersen (Cal.) 178

Gwynn, Swamp Land Diet. v.

Haas V. Choussard (Tex.) 41, 374

Hagan, Pollard v.

Hagar v. Board of Supervisors

(Cal.) 178, 648

Hagar, People v.
Hagar, Beelamation Dist. v.
Hagge V. Kansas etc. Co. (Fed.) 164
Haggin, Dougherty v.
Haggin, Lux v.
Haggin, People v.
Haggin, Swamp Land Dist. v.
Hague V. Nephi Irr. Co. (Utah) 97,

264, 288, 292, 326
Haines, Van Sickle v.
Hale, Chessman v.
Hale V. McLea (CaL) 454, 458, 534,

543, 555, 584
Haley, Lake Fork etc. Co. v.
Hall, In re (N. Y.) 436, 443

Hall v. Blackman (Idaho) 127, 200,
269, 272, 274, 339, 374, 379, 382
HaU v. Carter (Tex.) 42, 372

HaU V. City of Jonia (Mich.) 446
Hall, Hargrave v.

Hall V. Lincoln (Colo.) 350, 351, 352
Hall, Lobdell v.
Hall, Beelamation Dist. v.
Hallett V. Carpenter (Colo.) 288,

289, 610, 614
Hallett, Mobile v.

Hallock V. Suitor (Or.) 384

Hamby v. City of Dawson (Ky.)

585, 586
Hamilton, Speake v.
Hamlin, Cbnsolidated etc. Co. v.
Hammopd, Dorr v.
Hammond v. Bose (Colo.) 44, 97, 98,

183, 288, 291
Hampshire, Smith v.
Hancock, Alta Land Co. v.
Hancock, Natoma etc. Co. v.
Hand Gold Min. Co. v. Parker
(Ga.) 398

xlii

TABLE OF CASES.

Page

Handy Ditch Go. v. Louden etc.

Co. (Colo.) 101, 284, 288

Handy Ditch Co., Louden etc. Co.

Handy Ditch Co. v. Southside etc.

Cb. (Colo.) 616, 618

Hanrahan, Stickney v.
Hansen, La Jara etc. Co. t.
Hanson v. McCue (Cal.) 120, 247,

248, 357, 381, 534, 542, 551, 555,

561, 566, 575, 580
Hapgood, McLean v.
Hard v. Boise etc. Co. (Idaho) 125,

288, 292, 293, 295, 626, 641, 644,

645
Hardenbrook, Meagher v.
Hardin v. Jordan (U. 8.) 91

Hardwick, Hillman t.
Harger, Moe v.
Hargrave v. Cook (Cal.) 40, 112,

247, 283, 291, 296, 358, 384, 441,

442, 443, 515
Hargrave v. Hall (Ariz.) 641, 645
Harley, Slattery v.
Harkness, Bradley v.
Harper's Ferry etc. Co., Thropp

Harrington v. Demarris (Or.) 41,

123, 301, 380
Harris, Brosnan v.
Harris, Gregory v.

Harris v. Harrison (Cal.) 410, 458,

462, 463, 464, 468, 469
Bbrris v. Tarbet (Utah) 652

Harrison, Harris v.
Hart V. Burnett (Cal.) 4

Hart, Fresno etc. Co. v.
Hart, Hoyt v.
Harter, Williams v.
Hartzall v. Sill (Pa.) 409

Hatch, Shoemaker v.
Hathaway, Crawford etc. Co. v.
Hathom v. Saratoga etc. Sana-
torium (N. Y.) 551, 582, 578, 586
Hausch, Wilcox v.
Hawkins, Silva v.
Hawkins, Smith v.
Hawley, Cache La Poudre Co. v.
Hayden v. Long (Or.) 41, 309, 449
Hayes, Alder Gulch etc. Co. v.
Hayes, Carson v.

Hayes v. Fine (Cal.) 127, 324, 337
Hayes v. Martin (Cal.) 379

Hayes, Silver Creek etc. Co. v.
Hayois v. Salt E. Co. (Ariz.) 626,

629

Hays V. Buzard (Mont.) 125, 288,

292, 297, 341, 342, 350, 351

Page

Hawaiian Con. etc. Co. y.
Wailnku etc. Co. (Hawaii) 125,

292
Hazelett, Greencastle v.
Head v. Amoskeag Co. (IT. S.) 131
Healey v. Anglo etc. Bank (Cal.)

650
Healy v. Smith (Wyo.) 147

Healy v. Woodruff (Cal.) 133, 148,

149, 154

Heard, Spargur v.

Heath v. Williams (Me.) 409

Hecker, Mitchell v.
Heckman v. Swett (Cal.) .178

Hecton etc. Co. v. Valley etc. Co.
(Colo.) 262, 350

Heiderer, Crisman v.
Heilbron v. Fowler etc. Canal
Co. (Oil.) 167, 307, 312, 318, 380,
436, 446, 447, 451, 499, 505
Heilbron v. Land etc. Co. (CaL) 212,

• 504

Efeilbron v. Last Chance Water
Co. (Cal.) 307, 369, 382, 458, 473,

493, 499, 573
Heilbron, Last Chance etc. Co. v.
Heinlen v. Fresno etc. Co. (Clal.) 514
Heintzen v. Binninger (Cal.) 370
Heiser, Greer v.

Helena v. Bogan (Mont.) 402

Helena Co., Sprat t v.
Helena etc. Co. v. Spratt (Mont.)

388, 397, 398, 402
Helphrey v. Perrault (Idaho) 268,

630

Henk, Lanfers v.

Henry, Middle Cr. D. Co. v.

Henshaw v. Salt River etc. Co.

(Ariz.) 372

Hensley v. Beclamation Dist.

(Cal.) . 178

Hensley, Weinreich v.
Hercules Water Co. v. Fernandez

(Cal.) 403, 421

Hermon, Atchinson etc. Co. v.
Hermsmeyer, Bullerdick v.
Herriman Irr. Co. v. Butterfield

M. Co. (Utah) 97, 359, 360, 362,

543, 581
Herriman etc. Co. v. Kehl (Utah)

550, 579
Herriman Irr. Co. v. Keel (Utah)

351, 359, 360
Herring v. Modesto Irr. Dist.

(Fed.) 650

Hesperia etc. Co. v. Gardiner

(Gal.) 239, 240, 243

TABLE OF CASES.

xliii

Page

Hesperia etc Go. v. Bogers (Cal.)

374, 382
Heas, La Junta & Lamar Co. v.
Hewel V. Hogin (Cal.) 650

Hewitt, Crook v.
Hewitt V. San Jacinto Diet.

(CaL) 635

Hewitt V. Story (Fed.) 33, 56, 263,

350, 367
Hejneman v. Blake (Cal.) 134, 238,

240, 241, 243, 244
Hicks V. BeU (Cal.) 10

Hicks V. Compton (Cal.) 318

Hicks, Frank v.
Higbee, Wilson v.

Higgins V. Barker (Cal.) 99, 283,

300
Highland Boy Co., Strickley v.
Highland D. Co., Cashman v.
Highland Ditch Co., Miller v.
Highland D. Co. v. Mumford

(Colo.) 200

Higuerra, (^Ihamock v.
Hignerra v. Del Ponte (CaL) 369,

375
Hildreth v. Montecito etc. Co.

(Cal.) 390, 622, 626, 628, 629

Hill, Chanvet v.
Hill, Conradt v.
Hill, Gleason v.

HUl V. King (Cal.) 15, 157, 185, 299
Hill T. Lenormand (Ariz.) 110

Hill, Mason v.

HiU V. Newman (Cal.) 120, 126,

129 130
Hifl V. Smith (Cal.) 14, 296,^299,

301, 302
Hill V. Standard etc. Co. (Idaho)
107, 188, 288, 289, 303, 305, 319,

384
Hilhnan v. Hardwick (Idaho) 99
Hilhnan v. Newington (Cal.) 300,

325
Hilton, Van Bibber v.
Himes v. Johnson (Cal.) 109

Hindman v. Bizor (Or.) - 190, 264,

272, 275, 342, 347
Hobart v. Ford (Nev.) 22, 118

Hobart V. Wicks (Nev.) 110, 288
Hobs V. Amador etc. Co. (Cal.) 303
Hoddmott, Sampson v.
Hoffman, Case v.

Hoffman v. Stone (Cal.) 121, 185,

204, 205, 359
Hoffman v. Tuolumne Co. (Ckl.)

257
Hogc V. Eaton (Fed.) 71, 74, 168,

170, 171, 218

Page
Hogin, Hewel v.

Holker v. Porritt (Eng.) 407

HoUister v. State (Idaho) 397

Holter, Columbia Mining Co. v.
Hombey v. City of Dawson

Springs (Ky.) 578, 579

Hooker v. Los Angeles (U. S.) 4

Hooper Irr. Co., Jenkins v.
Hope Min. O., Smith v.
Horbach v. Boyd (Neb.) 379

HortoB, State v.
Hosmer, Mattis v.
Hosmer, Beynolds v.
Hostetter, Bamum v.
Hotchkiss, Parker v.
Hottell V. Farmers' etc. Assn.

(Colo.) 335

House, Greeley Irr. Co. v.
Houston, People v.

Houston By. Co. t. East (Tex.) 578,

586

Howard, Fleming v.

Howard v. IngersoU (U. S.) 162, 488

Howard v. Perrin (Ariz.) 534

Howard v. Perrin (U. S.) 590

Howard, Wright r.

Howcroft V. Union etc. Co.

(Utah) 123, 537

Howe V. Norman (B. I.) 462

Howell T. Big Horn Basin etc.

Co. (Wyo.) 257

Howell V. Johnson (Fed.) 41, 63,

Hoye V. Sweetman (Nev.) 318

Hoyt V. Hart (Cal.) 231, 265, 3*73

Hoyt, Norris v.

Hoyt, Parks etc. Co. v.

Hubbs & Miners' Ditch Co. v.

Pioneer Water Co. (Cal.)
Huber, Levee Dist. v.
Huber v. Merkel (Wis.) 42, 547,

578, 713

Hudson, McCnintock v.

Hudson, McGhee etc. Co. v.

Hudson, Talbot v.

Hudson etc. Co. v. McCarter (U.

• S.) 48, 90

Hudson etc. Co., McCarter v.

Huffner v. Sawday (Cal.) 40, 123,
134, 162, 313, 316, 325, 326, 329,
354, 441 493, 496, 499, 503, 504,

506, 535, 537

Hughson V. Crane (Cal.) 649

Hugo, Commissioners of Hoek v.

Hulbert, People v.

Hume V. Bogue Biv. Co. (Or.) 376

Hume, Shively v.

xliv

TABLE OF CASES.

Page

Humphreys v. McCall (Cal.) 308,

309

Hunnewill, Kirman v.

Hungarian etc. Co. v. Moses
(Cal.) 340

Huning r. Porter (Ariz.) 98

Hunt V. Jones (CaL) 325, 335, 634

Hunter, Jensen v.

Hunting etc. Assn., Seelej ▼.

Hurd V. Boise etc. Co. (Idaho) 245,

743

Hurdie, McClellan v.

Huston V. Lieach (CaL) 542, 555,

561

Hutchinson, Board etc. v.

Hutchinson, Qillan ▼.

Hutchins, Toyaha etc. Co. v.

Hutson V. Woodbridge Protection
Dist. No. 1 (Cal.) 178

Hyatt, Cummings v.

Hyatt, Magill v.

Hydraulic Co., Everett v.

Idaho etc. Co., Arave v.

Illinois, Missouri v.

Illinois, Munn v.

Illinois etc. Dist., Missouri v.

niius. Brown v.

Imperial Co., Platte Irr. C6. v.

Imperial etc. Co., Bobinson v.

Independent Ditch Co., Leigh v.

Indianapolis Water Co. v. Ameri-
can etc. Co. (Fed.) 438

Inge, Liggins v.

Ingersoll, Howard v.

Inhabitants of Bradley, Penob-
scot Co. V.

In re Barre Water Co.

In re Central Irr. Dist.

In re Hall

In re Madera Irr. Dist.

In re Priorities Dist. No. 12.

In re Werner

Insinger, Ogilvy Irr. Co. v.

Integral etc. Co. v. Altoona etc.
Co. (Fed.) 230, 350, 354, 366

International etc. Ry. v. Davis
(Tex.) 315

Irish, Ramelli v.

Irrigation Co. v. Ogden City
(Utah) 128, 240

Irvine, Bathgate v.

Irwin V. Phmip8(Cal.) 9, 19, 35,

36, 42, 97, 109, 112, 124, 158, 198,

' 428

Irwin V. Strait (Nev.) 209, i211

liaacs V. Barber (Wash.) 42, 110,

327

Page
Ish, Offield V.

Ison V. Nelson Min. Co. (Fed.) 41,

134, 141, 352, C68
Ivie, Munrpe v.

Jacob V. Day (Cal.) 109, 230, 231,

232, 286, 305
Jacob V. Lorenz (CaL) 175, 233,

283, 296, 325, 337, 344
Jacobs, Lorenz v.
Jacobson, Miocene etc. Co. v.
Jaqui V. Johnson (N. J.) 286

Jarvis v. State Bank (Colo.) 219,

233, 254
Jaspar, San Diego etc. Co. v.
Jatunn v. Smith (CaL). 183, 382
Jefferds, People v.

Jeffei^ V. Jeffers (N. Y.) 163

Jeifers, Jeffers v.

Jenison v. Bedfield (Cal.) 647, 650
Jenkins v. Hooper Iit. Co.

(Utah) 258, 370

Jenkins, Springfield W. W. v.
Jenkinson, Pa?mee Land etc.

Co. V.
Jennings, Proctor v.
Jennison v. Kirk (U. S.) 14, 17, 23,
46, 48, 84, 114, 147, 256, 389
Jensen v. Hunter (Cal.) 324, 333,

337, 379, 382
Jobling V. Tuttle (Kan.) 379, 380
Johncoz, Benton v.
Johnson, Giliett v.
Johnson, Himes v.
Johnson, Howell v.
Johnson, Jaqui v.
Johnspn, Piatt v.
Johnson, Sayre v.
Johnson, Stowell v.
Johnson v. Superior Court (Cal.)

315
Johnston v. Little Horse Creek

Co. (Wyo.) 100, 121, 125, 264,

268, 292, 293, 295, 339, 343, 347,

731
Jones V. Adams (Nev.) 44, 68, 110,

463
Jones, Adams v.
Jones, Conant v.

Jones V. Conn (Or.) 41, 411, 446,
457, 466, 479, 482, 492, 495, 512, 513

Jones V. Deardorff (Cal.) 341, 342

Jones, Gillespie v.

Jones, Hunt v.

Jones, Tucker v.

Jordan, Hardin v.

Joseph V. Ager (Cal.) 230, 286

Joy V. Stump (Or.) 872

TABLE OF CASES.

xlv

Page

Joyce, Kendall v.

Judkins v. Elliott (Cal.) 110

Jndaon y. Mallory (Cal.) 355, 367
Junction etc. Co. v. Durango

(Colo.) 208, 401, 402, 626

Jung V. Neraz (Tex.) 304

Junkans v. Bergin (Cal.) 9», 291,

300, 302
JuriBch, Castle Rock etc. Co. v.

Kalama Co. v. Kalama Co.
(Wash.) 451, 458, 509

Kalama Co., Kalama Co. v.

Kaler v. Campbell (Or.) 110, 133

Kalsey, MePhee v.

Kane v. Littlefield (Or.) 176

Kansas v. Colorado (U. S.) 29,

30, 40, 41, 44, 47, 48, 52, 55, 80,

89, 90, 92, 168, 169, 173, 174, 312,

496, 535, 536, 537, 551, 587

Kansas etc. Co., Hagge v.

Kate Hayes etc. Co., County of
Tuba V.

Kats V. Walkinshaw (Cal.) 17, 40,
71, 80, 93, 177, 248, 319, 320, 321,
357, 381, 410, 434^454, 456, 466,
489, 492, 496, 526^534, 543, 545,
546, 547, 550, 551/^52, 559, 560,
.562, 564, 566, 567, 572, 574, 577,
578, 579, 581, 582, 686, 588, 589,

590

Kaweah Co., Creighton v.

Eeane v. Capnovan (Cal.) 367

Kearney etc. Co. v. Akeyson
(Neb.) 257

Kearney etc. Syndicate, Bacon

Kearney Power etc. Co., Sanimons

Keel, Herriman Irr. Co. v.

Keenev v. Carillo (N. Mex.) 534

Kehl, Ball v.

Kehl, Herriman etc. Co. v.

Keller v. Prink (Cal.) 256

Kelley v. Dunning (N. J.) 163

Kellog, Dumont v.

Kelly V. Natoma Water Co.

(Cal.) 35, 183, 185, 199, 204, 300

Kelly V. Taylor (Cal.) 384

Kendall v. Joyce (Wash.) 42, 45,

64, 118, 186, 195, 449

Kenilwortb Canal Co., San Luis

etc. Co. V.
Kennedy, Bliss v.

Kennedy v. Carillo (N. Mex.) 203
Kennedy, Reclamation Dist. v.
Kensit v. Great Eastern Ry.

(Eng.) 408, 499, 502

Page

Kentucky, Louisville Co. v.
Kern etc. Co. v. Bakersfield (Cal.)

254, 286, 370
Kern Island etc. Co., Stein CJknal

Co. V.
Kerr v. Burns (Colo.) 616, 617
Kerrigan, Title etc Co. v.
Ketchikan etc. Co. t. Citizens'

etc, Co. (Aktska) 40, 263, 800
Keys, Missouri Pac. By. Co. v.
Kibbe, Pollard v.
Kidd V. Laird (Cal.) 65, 97, 120,

234, 235, 236, 240, 241, 242, 281,
284, 288, 291, 419, 421, 424
Kidd, Nevada etc. Co. v.
Kidd, St. John v.
Kidder, Cowles v.
Kilham, Parker v.
Kilham, Parker v.
Kimball v. Gearhart (Cal.) 97, 185,

189, 192, 194, 200, 201, 203, 337
Kimball v. Northern Irr. Co.

(Colo.) 323, 326, 630, 634, 646
Kimball v. Reclamation Dist.

Fund Commrs. (Cal.) 178

King V. Ackroyd (Colo.) 292, 341
King, Chesley v.
King, HUl V.

King V. Miles (Mont.) 257

King, O'Brien v.
King, Rochdale v.
King, South Tule etc. Co. v.
Kingdom, Bliss v.
Kin^ River etc. Co., Lower Kings

River etc. Co. v.
Kinkade v. Witherope (Wash.) 653,

794
Kinkhead v. Turgeon (Neb.) 517
Kinman, Pope v.
Kinnaird v. Standard Oil Co.

(Ky.) 306

Kinsell, Mathews v.
Kirk V. Bartholomew (Idaho) 97,

99, 197, 263, 266
Kirk, Jennison v.
Kirk, Titcomb v.
Kirk etc. Co. v. American Assn.

(Ky.) 402

Kirman v. Hunnewill (Cal.) 338,

339, 351, 353
Kitts, Cross V.
Kleinschmidt v. Greiser (Mont.)

264, 269, 350, 352
Knight V. Cohen (Cal.) 372, 377,

379
Knipe, Ferra v.
Knowles v. Clear Cr. etc. Co.

(Colo.) 288, 292, 645

xlvi

TABLE OF CASES.

Page

Krafts, Roberts v.
Krall V. United States (Fed.) 44,

97, 136
Krause v. Oregon Steel Co. (Or.)

312
Kreybill, New La Junta etc. Co.

Kreyenhagen, Wells v.

La Canada Water Co. Cohen v.

Ladd V. Bedle (Wyo.) 176, 312

La Grande Co., Curtis v.

Laird, Kidd v. '

La Jara etc. Co. v. Hansen

(Colo.) 252, 253, 265, 357, 536

La Junta & Lamar Co. v. Hess

(Colo.) 263, 334, 631

Lake v. Tolles (Nev.) 118

Lake Fork etc. Co. v. Haley
(Colo.) 614, 616

Lakeside Ditch Co. v. Crane
(Cal.) 247, 310, 322, 326, 329,

358, 513, 592, 599

Lamar Canal Co., Mohl v.
Lamar etc. Co. v. Amity etc. Co.

(Colo.) 98, 127, 220, 735
Lamar etc. Co. v. County etc. Co.

(Colo.) 127

Lamar etc. Co., Great Plains etc.

Co. V.
Lambv. Reclamation Dist. (Cal.)

164, 178
Lamborn v. Bell (Colo.) 351

Lame, McDougal v.
Lamson v. Vailes (Colo.) 74, 172,

612
Lancaster Mills, Pitts v.
Land etc. Co., Heilbron v.
Lanfers v. Henk (111.) 131

Lannen, McDonald v.
Lanning v. Osborne (Fed.) 626,

629, 631
Lantz, Nichols v.
Larimer etc. Co., Armstrong v.
Larimer etc. Co. v. Cache La Pou-

dre etc. Co. (Colo.) 213, 292,

309, 337
Larimer etc. Co., Cache La Poudre

Co. V.
Larimer etc. Co., Colorado etc.

Co. V.
Larimer etc. Co., Eaton v.
Larimer etc. Co. v. P-eople (Colo.)

110, 121, 197
Larimer etc. Co. v. Water Supply

Co. (Colo.) 309

Larimer Co., Water Supply Co. v.

Larimer etc. Co. v. Wyatt, (Colo.)

109, 263, 645
Larimer etc. Co., Wyatt v.
Larimer etc. Co.- v. Zimmerman

(Colo.) 257

LarrLeu, Clifford v.
Larsen v. Navigation Go. (Or.)

117
Larsen, Parker v.
La Rue, People v.
Last Chance etc. Co. v. Bunker

HUl etc. Co. (Fed.) 253, 350, 353
Last Chance etc. Co. v. Emigrant

D. Co. (Cal.) 127, 311

Last Chance etc. Co. t. Heilbron

(Cal.) 151, 262, 380, 493

liast Chance etc. Co., Heilbron v.
Latham v. Wenatchee etc. Co.

(Wash.) 333

Lauer, Churchill v.
Lavery v. Arnold (Or.) 324, 372,

378, 384
Lawrence, Clark v.
Lawson, Dunniway v.
Leaeh, Huston v.
Leaky, Fitzell v.

Learned v. Tangeman (Cal.) 458,

462
Lee, McLeod v.
Lee, Thompson v.
Left Hand Ditch Co., CofSn v.
Left Hand Ditch Co., Oppenlan-

der V.
Le Franc, Coleman v.
Leggat V. Carrol (Mont.) 186

Legget etc. Co. Boulder etc. Co. v.
Lehi Irr. Co. v. Moyle (Utah) 110.

• 205
Lehman, St. Amand v.
Leigh V. Independent Ditch Co.

(Cal.) 35, 118, 187

Lenormand, Hill v.
Leonard v. Flynn (Cal.) 387

Leonard v. Shatzer (Mont.) 542

Leon etc. Co., Baldridge v.
Lesher, Grand Valley etc. Co. v.

Levaroni v. Miller (Cal.) 19, 302,

303

Levee Dist. No. 1 v. Huber (Cal.)

178

Levee Dist., People v.
Lewis, Browning v.
Lewis, Peters v.
Lewiston Co., Waha Co. v.
License Cases (U. S.) 624

Lick V. Diaz (Cal.) 370

Liggins V. Inge (Eng.) 234, 406,

407, 415, 418, 420

TABLE OF CASES.

xlvii

Page

Lillian Irr. Dist., Andrews v.

Lillingston, Walker v.

Lillis V. Emigrant D. Co. (Cal.) 513

Lime Point, Gilmer v.

Lincoln etc. Co. v. Big Saoidy etc.

Co. (Land Dec.) 226

Lincoln etc. Co., Durga v.
Lincoln, Hall v.
Lind, Twin Falls Co. v.
Linda Vista Irr. Dist., People y.
Lindsay, Center Creek etc. Co. v.
Lindsay etc. Co. v. Mehertens

(Cal.) 391, 622, 648

Linhart, Arnett v.
Lisonbee v. Monroe Irr. Co.

(Utah) 258, 585

Little V. American Tel. Co. (Del.)

578
Little Creek etc. Co. v. Perdew

(Cal.) 307

Littlefield, Kane v.
Little Horse Creek Co., Johnston

Little Walla Wajla Irr. Dist. v.

Preston (Or.) 323, 652

Livezey, Squires v.
LobdeU v. Hall (Nev.) 130, 131, 197,

332, 354
LobdeU v. Simpson (Nev.) 97, 101,

330, 410, 514

Locke, Montgomery v.
Lock's Creek Canal Co. William-
son V.
Lockwood, Fleming v.
Logan, Cole v.

Logan V. DriscoU (Cal) 97, 302,

303

Logan, Smith v.

Londonderry By., McCarthy v.

Lone Tree D. Co. v. Cyclone D.

Co. (S. Dak.) 41, 45, 93, 116, 117,

462, 466, 498, 781
Lone Tree D. Co. v. Bapid City E.

ft G. L. Co. (S. Dak.) 41, 197, 198
Long, Hayden v.
Long, Millheiser v.
Longley, Boynton v.

Longmire v. Smith (Wash.) 269

Longwell, Scott v.

Lord V. Commissioners of Sydney

(Eng.) 432

Lord V. Dunster (Cal.) 178

Lord V. MeadviUe Water Co. (Pa.)

462

Lord, Salem etc. Co. v.
Lorenz, Jacob v.

Lorenz v. Jacobs (Cal.) 131, 307,

323, 390

Page

Lorenz v. Waldron (Cal.) 256, 312,

314
Los Angeles v. Baldwin (Cal.) . 120,

235, 486
Los Angeles, Devine v.
Los Angeles, Feliz v. '
Los Angeles, Fellows v.
Los Angeles, Hooker v.
Los Angeles, Los Angeles Assn. v.
Los Angeles v. Los Angeles etc.

Co. (CaL) 4, 93, 410, 450

Los Angeles, McFadden y.
Los Angeles v. Pomeroy (Cal.) 4,

116, 230, 231, 286, 371, 390, 403,

534, 535, 536, 537, 540, 545, 550,

555
Los Angeles, Vernon Irr. Co. v.
Los Angeles Assn. v. Los Angeles

(CaL) 162, 166, 175

Los Angeles etc. Co., Los Angeles

Losee v. Buchanan (N. Y.) 256
Loud Gold M. Co. v. Blake (Fed.)

511
Louden etc. C. Co. v. Handy D.

Co. (Colo.) 600, 609, 612, 616, 617
Louden etc. Co., Handy Ditch Co.

Louden etc.. Lower Latham D.

Co. V.
Louie, Churchill v.
Louisville Co. v. Kentucky Co.

(Ky.) 578

Loutsenhiser etc. Co., Montrose etc.

Co. v.
Love, Abel "v. ,

I^ow v. Rizor (Or.) 190, 272

Low V. Schaffner (Or.) 41, 134, 167,

342, 345, 462
Lowden v. Frey (CaL) 296, 351

Lowden, Frey v.
Lower etc. Co., Boulder etc. Co. v.
Lower Kings River W. D. Co. v.

Kings River & F. Co. (CaL)

127, 230, 233, 311, 340. 344
Lower Kings River Reclamation

Dist. No. 531 V. McCullah

(CaL) 179

Lower Kings River Reclamation

Dist. No. 531 V. Phillips (Cal.)

178
Lower Latham Co. v. Bijou Co.

(Colo.) 288, 290, 310, 352, 612, 618
Lower Latham D. Co. v. Louden

etc. (Colo.) 350

Lower Tule Co. v. Angiola etc.

Co. (CaL) 185, 196, 204, 205, 359
Lowery, Weimer v.
Lowney, Wood v.

zlviii

TABLE OP CASES.

Page

Lucerne etc. Co., i(]atheTford y.

Lumber Co., Clark v.

Luterman, Trambley v.

Luterman, Twambley v.

Lux V. Haggiu (Cai.) 4, 14, 15, 17,
26, 27, 30, 32, 35, 36, 37, 38, 39, 40,
42, 43, 52, 61, 62, 63, 65, 66, 76, 77,
78, 79, 80, 86, 91, 92, 112, 116, 129,
133, 141, 147, 151, 155, 161, 162,
164, 175, 178, 179, 191, 197, 247,
310, 314, 315, 358, 370, 383, 384,
386, 387, 390, 391, 399, 408, 411,
412, 414, 415, 416, 436, 440, 441,
442, 444, 449, 450, 451, 454, 455,
457, 458, 459, 461, 464, 474, 476,
477, 488, 494, 503, 511, 515, 516,
519, 520, 532, 534, 551, 559, 570,
589, 590, 599, 700, 766

Lydick, Gill v.

Lylea v. Perin (Cal.) 127, 337

Lyman v. Arnold (Fed.) . 230

Lyng, Miocene D. Co. v.
Lyon V. Fishmongers' Co.

(Eng.) 408, 429, 450

Lytle Creek etc. Co. v. Perdew

(Cal.) 131, 132

Mace V. Mace (Or.) 166

Maclay R. Co., Burr v.
Maddux, Dickey v.
Madera Canal Co., California

Pastoral Co. v.
Madera etc. Co., Miller v.
Madera Irr. Dist., In re (Cal.)

648, 649

Maoris v. Bicknell (Cal.) 130, 194,
196, 205, 281, 284, 291, 296
Magill V. Hyatt (Colo.) 615

Magistrates v. Elphinston (Eng.)

237, 424
Mahoney v. American etc. Co.

(Cal.) 628, 629

Mahoney v. Nelswanger (Idaho)

292

Maier, Ex parte (Cal.) 423

Maier, Tuolumne etc. Co. v.
Malad Val. Irr. Co. v. Campbell

(Idaho) 97, 98, 167, 543

Malan, Gill v.
Mallett V. Uncle Sam Min. Co.

(Nev.) 21

Malloy, Judson v.

Manigault v. Springs (U. S.) 592
Mann v. Parker (Or.) 97, 100, 103,
196, 264, 267, 268, 313, 318
Manning v; Fife (Utah) 264, 339
Manning ▼. Washdale (Eng.) 420
Mansfield, Stephens y.
Mantes, Wells y.

Page
Maple etc. Co. y. Marshall (Utah)

324
Marble etc. Co., Becker y.
Marden, Dodge y.
Maricopa etc. Co., Gould y.
Maricopa etc. Co., Marlar.y.
Marin Co., Marin Co. etc. Co. y.
Marin Co. etc. Co. y. Maxin

Co. (Cal.) 402

Marius y. Bicknell (Cal.) 97

Markwardt y. City of (HithTie

(Okla.) 41, 509, 776

Marlar y. Maricopa etc. Co.

(Ariz.) 350, 352

Marra y. San Jacinto Irr. Dist.

(Fed.) 650

MarshaU, Maple etc. Co. y.
Marshall, Mulrone y.
Marshall y. Taylor (Cal.) 178

Marshall y. Welwood (N. J.) 256
Marthaler, Schaef er y.
Martin, Hayes y.
Martin, Vamer y.
Martyn, Gayed y.

Mason v. Cotton (Fed.) 44, 470

Mason y. Hill (Eng.) 14, 235, 236,

237, 308, 310, 406, 407. 408, 415,
419, 420, 421, 423, 429, 433, 491
Mastin, Talcott y.

Mathews y. Kinsell (CaL) 259

Matter of Tuthill

Matthews y. Ferrera (Cal.) 183, 370,

382
Mattis y. Hosmer (Or.) 337, 340,

342

Mau V. Stoner (Wyo.) 132

MaU) Stoner y.

Maxwell, Farmers' etc. Co. y.

May, Tulare Co. y.

May, Wold y.

May berry v. Alhambra'etc. Co.

(Cal.) 126, 230, 232, 360

Mayberry, Alhambra etc. Co. y.
Maye y. Yappan (CJal.) 387

Mayor y. Commissioners (Pa.) 235,

419
McBride y. Steinwender (Kan.) 517
McBride, Whitaker y.
McCall, Humphreys y.
McCall y. Porter (Or.) 97, 100, 204,

205, 309, 359
McCann y. Wallace (Fed.) 384

McCarter y. Hudson etc. Co. (N.

J.) 173, 240, 409, 432, 450, 473

McCarter, Hudson etc. Go. y.
McCarthy y. Gaston etc. Min. Co.

(Cal.) 303, 313, 325, 327

McCarthy v. Londonderry By.

(Eng.) 408, 446, 454, 499

TABLE OP CASES.

zlix

Page

MeCartT v. Boise etc. Co. (Idaho)

260
MeCartj v. Bunker Hill ete. Co.

(IW.) 319

MeCartj t. Fremont (Oal.) 330

McCauley, Cnwe v.

MeCanlej v. McKeig (Mont.) 354
McGellan v. Hurdie (Colo.) 252,

536
McCIintock v. Hudson (Cal.) 470^
473, 535, 536, 537, 538, 540, 544
551, 559, 565, 572, 587

MeCook etc. Co. v. Crews (Neb.) 41,
314, 396, 461, 495, 513, 517, 520,
521, 524, 525, 526, 603
McCord V. Slavin (Cal.) 179

McCoy, Natoma etc. Co. v.
MeCrary v. Baudry (Cal.) 391, 626,

628
MeCue, Hansen v.
McOue, Hanson v.
McCue, Wilkins v.
McCnllah, Lower Kings Biver etc.

McDanlel v. Cummings (Cal.) 176
MeDennott t. Anaheim etc. Co.
(Cal.) 307, 631

McDonald v. Askew (Cal.) 120, 23 >.

337
McDonald v. Bear Biver etc. Co.
(Cal) 14, 18, 37, 97, 185, 19«
262, 283, 291, 296, 300, 327, 328
McDonald ▼. Laiinen (Mont.) 262,

271, 347
McDougal V. Lame (Or.) 374

McEwen v. Preeee (Wash.) 369

McFadden y. Los Ajigeles (Cal.)

622
MeFarland, Colorado etc. Co. ▼.

MeOhee etc. Co. v. Hudson (Tex.)

41 520
McQillvray v. Evans (Cal.) ' 131,

323
McGrimes, Walker v.
McGuire v. Brown (Cal.) 40, 109,
112, 116, 120, 151, 154, 185, 206,

240, 291, 348, 352
Mclntire, Deseret etc. Co. v.

Mcintosh, Nichols v.

Mclntyre, Willow Creek etc. Co.

MeKeig, McCauley v.

McKeohn v. Northern Pac. By.
Co. (Fed.) 370

McKinley v. Union County Free-
holders (N. J.) 163

MeKinney, Partridge v.

Page
MeKinney v. Smith (Cal.) 97, 262,

283, 291, 296, 300, 357
McLea, Hale v.

McLean v. Hapgood (Cal.) 126, 232
McLeod V. Lee (Nev.) 258

McLeran v. Benton (Cal.) 353

McManus v. O 'Sullivan (CkL) 379
McNulty, Bichardson v.

McPhail V. Forney (Wyo.) 207, 295,

389
McPhee v. Kelsey (Or.) 324, 384

McBae v. Small (Or.) 206, 207, 370
McShane v. Carter (Pal.) 340, 342,

343
Meadows etc. Co., Fulton v.
MeadviUe W. Co., Lord v.

Meagher v. Hardenbrook (Mont.)

288, 292
Mechanics' Foundry v. Byall

(Cal.) 329

Medano etc. Co. v. Adams (Colo.)

267, 313, 329, 535, 610, 614
Mehertens Lindsay etc. Co. v.
Meilberg, Burkhart ▼.
Meiners, Bice v.
Meiners, Ventura etc. Co. v.

Meng V. Coffey (Neb.) 13, 28, 31,
32, 41, 51, 98, 142, 378, 380, 382,
411, 457, 458, 462, 463, 466, 470,

495, 518

Merced County, San Joaquin etc.
Co. V.

Merced Min. Co., Boggs v.

Merchants' Bank v. Escondido
Lt. Dist. (CaL) 648, 649, 715

Mercy, Bameich v.

Merkel, Huber v.

Merrick W. Co. v. Brooklyn (N.
Y.) 589

Merrill v. South Side Irr. Co.

(Oal.) 390,626,627

Mesmer, Bose v.

Mesnager v. Englehardt (Cal.) 230
Messinger v. Gordon (Colo.) 256

Metcalf, Barrett v.
Metcalf V. Faucher (Tex.) 466

Metcalf V. Nelson (S. Dak.) 41, 534
Methow etc. Co., Fulton v.
Metropolitan etc. Co., English v.
Metropolitan etc. Co. v. Topeka

etc. Co. (Fed.) 333

Meyer, Bachman v.
Meyer, Steinberg v.
Meyer v. Tacoma etc. (Wash.) 542
Michaelson, Willow Creek etc. Co.
- V.

TABLE OF CASES.

Page

Middle Creek D. Co. v. Henry
(Mont.) 288, 292, 337, 339, 350,

353
Miles V, Butte etc. Co. (Mont.)

103, 193, 195, 196
Miles V. Du Bey (Mont.) 610

Miles, King v.

Miller, Bank of British N. A. v.
Miller v. Bay Cities W. Co. (CIbiI.)

545
Miller v. Black Rock Co. (Va.) 579
Miller v. Douglas (Ariz.) 110, 283,

288
Miller v. Enterprise Co. (Cal.)

167, 504, 505
Miller v. HighUnd Bitch Co.

(Cal.) 303, 325

Miller, Levaroni v.
Miller v. Madera etc. Co. (Gal.)
40, 165, 384, 436, 504, 511, 519,

527 551
Miller v. Penis Irr. Dist. (Fed.) ' 650
Miller v. Rickey (Fed.) 169, 285,

327, 342
Miller, Rickey etc. Co. v.
Miller v. Thompson (C&l.) 322

MiUer v. Vaughan (Or.) 254

Miller, Wattier v.

Millheiser v. Long (N. Mex.) 97,

197, 264, 339
Mills, Patterson v.

Miner v. Gilmour (Eng.) 408, 416,

418, 435, 455, 465
Miners' Ditch Co., Tenney v.
Minneapolis, St. Anthony Co. ▼.
Minnesota etc. Co., Crawford t.
Minnesota etc. Co., State v.
Minnesota Loan & Trust Co. v.
St. Anthony Falls Water Power
Co. (Minn.) 464

Miocene etc. Co. v. Jacobson
(Alaska) 147, 209, 211, 314, 396,

400, 528, 800
Miocene D. Co. v. Lyng (Alaska)

402

Mirfield, Turner v.

Missouri V. Illinois (U. S.) 365

Missouri V. Illinois etc. Dist. (U.

S.) 173

Missouri v. Nebraska (U. S.) 517
Missouri Co., Cole v.
Missouri Pac. Ry. Co. v. Keys

(Kan.) 40

Missouri Pac. R. Co. v. Nebraska

.(U. S.) 388

Missouri Pac. Ry. Co., Town v.
Mitchell V. Amador Canal etc.

Co. (Cal.) 128, 195, 200, 340

Page
Mitchell V. Bain (Ind.) 163

MitcheU v. Canal Co. (CaL) 184,

195, 254, 338, 344
Mitchell V. Hecker (Cal.) 178

Mobile V. Emanuel (U. S.) 168

Mobile V. Eslava (U. S.) 168

MobUe V. HaUett (U. S.) 168

Modesto, Adams v.
Modesto Irr. Dist., Herring- v.
Modesto Irr. Co., Tregea v.
Modesto Irr. Dist., Western Union
etc. Co. V.

Modoc etc. Co. v. Booth (CaL) 40,

112, 318, 495, 503
Moe Y. Harger (Idaho) 97, 98. 100,

* 299

Mohl V. Lamar Clanal Co. (Fed.)

71, 73, 74, 98, 127, 220

Monroe Irr. Co., Lisonbeie v.

Montague v. Board of County
Com. (Kan.) 40

Montana etc. Co. v. Gehring
(Fed.) 105, 301, 303

Montecito etc. Co., Gallagher v.

Montecito etc. Co., Hildreth v.

Montecito etc. Co. v. Santa Bar-
bara (Cal.) 134, 310, 316, 318,
320, 325, 326, 329, 369, 370, 371,
372, 374, 375, 376,. 377, 378, 381,
460, 469, 473, 480, 498, 511, 513,
535, 537, 538, 544, 545, 551, 562,
565, 566, 572, 587, 590

Montclair, Gutheil etc. Co. v.

Montgomery, Crescent .etc. Co. v.

Montgomery v. Locke (Oil.). 370

Montrose etc. Co. v. Loutsenhizer
etc. Co. (Colo.) 93, 106, 107, 307,
616, 617, 618, 646, 737

Montrose etc. Co., Equitable etc
Co. V.

Moon V. Rollins (CaL) 355, 367

Mooney, Bashore v.

Mooney, Unger v.

Moore v. Clear Lake etc. Co.
(CaL) 312, 380, 499, 500

Moore, Downing v.

Moore v. Smaw (CaL) 60

Moreland, Williams v.

Morgan, BrOssard ▼.

Morgan, Butte etc. Co. v.

Morgan v. Shaw (Or.) 117, 159, 278

Morgan, Shenandoah etc. Co. v.

Moroni etc. Co., West Point etc.
Co. V.

Morris V. Bean (Fed.) 41, 99, 100,
110, 118, 122, 123, 141, 158, 172,
173, 186, 195, 218, 219, 316, 328,

TABLE OP CASES.

Page

368; 370, 381, 385, 449, 458, 496,

513
Morris, Bennett v.
Morris, Biekett v.

Morrison v. Officer (Or.) 162, 164,

452
Morrissey v. Chicago etc. Co.

(Neb.) 166

Morton v. Oregon By. Co. (Or.) 517
Morton v. Salambo Min. Co.

(CaL) 71, 421

Moses, Hungarian etc. Co. v.
Mosier v. Caldwell (Nev.) 550

Moss V. Rose (Or.) , 272, 351

Mott V. Ewing (Cal.) 312, 380, 499
Moulton, Wood v.

Moyer v. Preston (Wyo.) 44, 45, 67,

98
Moyle, Lehi Irr. Co. v.
Mt. Carmel Fruit Co. v. Webster

(Cal.) 128, 230, 332

Mud Cr. Irr.' A. & M. Co. v.

Vivian (Tex.) 41, 518

Mullen, City of Denver v,
Mullin, Brown v,

Mulrone v. Marshall (Mont.) 257,

259
Mnmford, Highland D. Co. v.
Munn V. DUnois (U. 8.) 624

Munroe v. Ivie (Utah) 195, 197,

266
Murdoek, Snyder v.
Murray v. Briggs (Wash.) 340

Murray, Briggs v.

Murray v. Tingley (Mont.) 186, 192,

194,197
MuscQpiabe etc. Co., Wiggins v.

Nampa etc. Dist. v. Boise (Idaho)

652
Nash, Clark v.

Nash V. Clark (Utah) 44, 392, 397,

401
National Bank v. Greenlaw (Cal.)

179
National City, San Diego etc. Co.

v.
Natoma Water Co., Broder v.
Natoma etc. Co. v. Hancock
(Cal.) 20, 100, 104, 128, 141, 197,

232, 300, 726
Natoma Water Co., Kelly v.
Natoma etc. Oo. v. McCoy (Cal.)

300
Navigation Co., Larsen v.
Neal v. Ohio Biver R. Co. (W.

Va.) 163

Neal, Smyth v.

Page

Nebraska, Missouri v.

Nebraska, Missouri Pac. R. Co. v.

Needle Rock etc. Co. v. Crawford
etc. Co. (Colo.) 615

Neiswanger, Mahoney v.

Nelson, Alamosa Co.* v.

Nelson, Gregory v.

Nelson, Metcalf v.

Nelson Mi^n. Co., Ison v.

Nelson v. Sponer (Wash.) 454, 791

Nelssen, Salt River Co. v.

Nephi Irr. Co. v, Vickers (Utah)

264, 268, 329

Nephi Irr. Co., Hague v.

Neraz, Jung v.

Nesalhous v. Walker (Wash.) 42,
83, 114, 462, 463, 469, 521

Nevada Bank v. Poso Irr. Dist.
(Cal.) 650

Nevada Bank v. Board of Super-
visors (Cal.) 649

Nevada etc* Co. v. Bennett (Nev.)
97, 110, 125, 136, 190, 195, 197, 202,
209, 213, 269, 272, 275, 292, 310,
338, 340, 342, 355, 642

Nevada etc. Co. v. Badd (Cal.) 103
120, 126, 188, 189, 192, 193, 194,
195, 200, 201, 203, 210, 211, 232,
233, 235, 240, 264, 296, 300, 313,

325, 329, 363

Nevada etc. Co. v. Powell (Cal.) 99,

124, 283

Newberg, Gardner v.

New Cache etc. Co. v. Arthur etc.
Co. (Colo.) 288, 289, 290

Newell, Brown v.

New England etc. Co., Nichols v.

New Hampshire etc. Co., Farm-
ers' etc. Co. V.

Newhouse, Francoeur v.

Newington, Hillman v.

New La Junta etc. Co. v. Kreybill
(Colo.) 631

New Loveland etc. Co. v. Consoli-
dated etc. Co. (Colo.) 199

203, 287, 297

New Loveland etc.. Consolidated
Home Supply etc. v.

Npw •Loveland etc. Co., Seven
Lakes etc. Co. v.

Newman, Boston & Roxbury Mill
Co. v.

Newman, Hill v.

Newman, Saunders v.

Newman v. Superior Court (Cal.)

178

New Mercer etc. Co. v. Armstrong
(Colo.) 269, 272, 350, 352, 616

lii

TABLE OF GABES.

Page

Newport v. Temeseal etc. Co.

(CaL) 316, 320, 496, 500, 516,
527, 551, 563, 572, 586, 588
New Whatcom t. Fairhaven L.

Co. (Waah.) 42, 167, 519

New York, Porbell v.
New York, Beisert v.
New York etc. B. Co., Bradley t.
New York etc. Co. v. Bothery

(N. Y.) 515

New York Min. Co., Bear Biver

Water Co. v.
Niagara etc. Co. v. College etc.

Co. (N. Y.) 75

Nichols, Ball v.
Nichols, County of Sutter v.
Nichols T. LantE (Colo.) 350, 351
Nichols V. Mcintosh (Colo.) 108,
232, 263, 288, 292, 612, 615.
Nichols V. New England etc. Co.

(Mich.) 230, 444

Nichols, Yunker v.

Nielson v. Sponer (Wash.) 78, 453,

462, 470.
Nippel V. Forker (Colo.) 53, 114,

145, 226, 227, 232, 233, 389, 401,

685
Noble, Quinlan v.
Noble etc. Co., Stuart v.
Noland v. Coon (Alaska) 342, 352,

368, 800
Norman v. Corbley (Mont.) 122, 189,

210, 288, 350, 351, 353, 372, 380
Norman, Howe v.

Norris V. Hoyt (Cal.) 130

North Am. etc. Co. v. Adamis

(Colo.) 195, 340, 342, 343, 350, 354
North Bloomfield v. United States

(Fed.) 303

North Bloomfield Co., United

States V.
North Bloomfield Co., Woodruff

North Canyon etc. Co., Smith v.
North etc. Co. v. Orient etc. Co.

(Fed.) 134

Northern etc. Co. v. Richards

(Colo.) 629, 635

North Fork etc. Co. v. Edwards

(Cal.) 230, 286, 372

Northern Irr. Co., Kimball v.
Northern Irr. Co., Platte Water

Co. V.
Northern Irr. Co., Wheeler v.
Northern Pac. By. Co., Pordham

Northern Pac. By. Co., McKeohn

Page
Northern Spy Min. Co., Sullivan

North Fork D. Co., Cozzens t.
North Platte etc. Co., Whalen ▼.
North Point Co. v. Utah Co.

(Utah) 205, 258, 300

Northport Brewing Co. v. Per-

rat (Wash.) 498

North Powder M, Co. v. Conghan-

our (Cr.) 342, 377, 380, 384

North Shore By. v. Pion (Eng.)

435
Norwich etc. Ins. Co., Breedlove

Noteware v. Stems (Mont.) 147,

389
Noyes, Gossert v.

O'Brien, Fallon v.
O'Brien v. King (Colo.) 350, 352.

616
O'Connor, Bartlett v.
Officer, Morrison v.

Offield V. Ish (Wash.) 158, 183

Ogbum v. Conners (Cal.) 176

Ogden, Bear Lake Co. v.
Ogden City, Irrigation Co. v.
Ogden W. W. Co., Brummitt v.
Ogilvy Irr. Co. v. Ensinger
(Colo.) 543

O 'Haia, Dondero v.

O'Hara, Smith v.

Ohio Biver B. Co., Neal v.

O'Keiffe v. Cunningham (Cal.) 305

Oligarchy etc. Co. v. Farm Inv.

Co. (Colo.) 623

Olivdr V. Agasse (Cal.) 230, 286

Olsen, Sweetland v.
Omerod v. Todmorden Co. (Eng.)

442, 445
O'Neill, Butterfield v.
O'Neil V. Fort Lyon Co. (Colo.) 109,

612, 645, 646
Oneto V. Bestano (Cal.) 127, 337,

879, 382
Ophir etc. Co. v. Carpenter (Nev.)

186, 200, 201, 202, 262, 351
Oppenlander v. Left Hand Ditch
Co. (Colo.) 44, 183, 295, 351, 359.

610, 611, 622, 733
Orcutt V. Pasadena etc. Co. (Cal.)

244, 314, 634
Oregon Const. Co. v. Allen D.
Co. (Or.) 41, 342, 372, 375, 378.

517

Oregon etc. Co., Bybee v.
Oregon etc. Co., Price v.

TABLE OF CASES.

liii

Page

Oregon Iron Co, v, Trullenger

(Or.) 41

Oregon Iron etc. Co., Weiss v.
Oregon By. Co., Morton v.
Oregon Steel Co., Krause v.
Orient etc. Co. ▼. Freckleton etc.

Co. (Utah) 384

Orient etc. Co., North etc. Co. v.
Orr etc. Co., Shields v.
Ortman v. Dixon (Cal.) 12, 19, 65,

97, 102, 105, 199, 262, 283, 291,
296, 300, 332, 337, 410
Osborne, T<anning v.
Osborne v. San Diego etc. Co.

(U. 8.) 632

Osgood V. El Dorado Water Co.

(CaL) 26, 65, 110, 116, 140, 177,

192, 210
O 'Sullivan, McManus v.
Onrj V. Goodwin (Aria.) 392, 396
Outhouse V. Berry (Or.) 444

Overaeker, Sogers v.
Oriatt V. Big Pour etc. Co. (Or.)

201, 202, 351
Owen, Embrey v.
Owens, Tregea ▼.

Pacific etc. Club t. Sausalito etc.

Co. (Oftl.) 127

Pacific etc. Co., Conkling v.
Packer v. Bird (Cal.) 168

Paige V. Bocky Ford etc. Co.

(Cal.) 123, 316, 360, 379, 517

Painter y. Pasadena Co. (Cal.)

333, 444, 555
Paisley, Bilen v.
Palermo W. Co., People v.
Palmer v. Waddell (Kan.) 165

Palmdale Irr. Diet. v. Bathke

(CaL) 650

Panhandle etc. Co., Sand Point

etc. Co. V.
Paris, City of, v. Tucker (Tex.)

257
Parke v. Boulware (Idaho) 329,

359
Parke v. Brunside (Idaho) 232

Parke v. Kilham (Cal.) 189, 247,

325, 358
Parke, Boulware v.
Parke, Fresno Canal Co. v.
Parker v. American etc. Co.

(Mass.) 460, 490

Parker v. City of Atcheson

(Kan.) 40

Parker v. Gregg (Cal.) 257, 300
Parker, Hand (Jold Min. Co. v.
Parker v. Hotchkiss (Conn.) 409

Page

Parker v. Kilham (Cal.) 208

Parker v. Larsen (Cal.) 257, 582,

585

Parker, Mann v.

Park etc. Co., Bipley v.

Parks etc. Co. v. Hoyt (Cal.)

121, 239, 240, 325, 328

Parksville etc. Diet. v. Wattier
(Or.) 110, 141, 327

Parrish, Geddis v..

Parsons, Snow v.

Partridge v. Mc Kinney (Cal.)

127, 337, 356

Partridge v. Shepard (Cal.) 370

Parvin, People v.

Parvin, Reclamation Dist. v.

Pasadena v. Pasadena (Cal.) 244

Pasadena, Graham v.

Pasadena, Orcutt v.

Pasadena Co., Painter v.

Pasadena, Pasadena v.

Pasadena etc. Co., South Pasa-
dena V.

Passavant, Arnold v.

Pastoral etc. Co., California etc.
Co. V.

Patterson v. Brown etc. Ditch
Co. (Colo.) 208, 401

Patterson v. Ft. Lyon etc. Co.
(Colo.) 372

Patterson v. MiUs (Cal.) 110, 325

Pawnee Land etc. Co. v. Jenkins
(Colo.) 635

Pawnee etc. Co., Town of Ster-
ling V.

Payne v. Cummings (Cal.) 340, 343

Pearson v. Dryden (Or.) 372

Pecas etc. Co., Santa Rosa etc.
Co. V,

Pemberton, Camthers y.

Pence y. Carney (W. Va.) 534, 547
571, 578, 579, 585, 586, 589

Pendola y. Ramm (Cal.) 340

Pennsylyania Coal Co. y. Sander-
son (Pa.) 256, 302, 306, 320

Pennsylvania Coal Co., Sander-
son V.

Pennsylyania M. L. I. Co. y.
Austin (U. S.) 315

Penobscot Co. y. Inhabitants of
Bradley (Me.) 442

People y. Ahem (Cal.) 178

People y. Blake (Cal.) 639

People y. Borda (Cal.) 331

People y. Brown Valley Irr.
Dist. (Fed.) 650

People, Chicago etc. By. Co. y.

People y. City of Oakland (Cal.)

179

Ivi

TABLE OF CASES.

Page

Reclamation Dist. No. 542 v.

Turner (Cal.) 178

Beclamation Dist. No. 551 v.

Van Loben Sels (Cal.) 179

Bdclamation Dist. No. 108 v.

West (Cal.) 179

Beclamation Dist. Fund Commrs.,

Kimball v.
Bedfieldi Jenison v.
Bedlands etc. Co., Graham v.
Bedle, Ladd v.
Beed, Britt v.
Beed v. Spicer (Cal.) 230

Beinbach, Wahle v.

Beisert v. New York (N. Y.) 328,

578, 579, 586

Beno Smelting Works v. Steven-
son (Nev.) 29, 44, 68, 71, 97, 766

Bestano, Oneto v.

Bevenue etc. Co. v. Balderston
(Alaska) 97, 104, 198, 800

Beynolds v. Hosmer (Cal.) 233, 254,

340, 344

Bhea, Ewing v.

Bhodes v. Whitehead (Tex.) 41,

454

Bialto Irr. Dist. v. Brandon
(Cal.) 649

Bialto Irr. Dist., Sechrist t.
Bianda v. Watsonville etc. Co.

(Cal.) 337, 338, 342, 442

Bice V. Meiners (Cal.) 40, 112, 374
Bichards, Chasemore t.
Bichards, Dower v.
Bichards, Northern etc. Co. v.
Bichards, Pyle v.
Bichards Irr. Co., Cole v.
Bichardson, Alharabra etc.

Water Co. v.

Bichardson v. Kier (Cal.) 205, 256,

257, 359
Bichardson, Kier v.
Bichardson v. McNulty (Cal.) 353,

355
Bichardson, Water Co. v.
Bichey v. East Bedlands etc. Co.

(Cal.) 642, 646

Bichland Tp., Upjohn v.
Bichter v. Union Lumber Co. .

(CaL) 638

Bichter, Eubrich v.
Bickey, Miller v.

Bickey v. Wood (Fed.) 310, 322,

325. 328, 461
Bickey etc. Co. v. Glader (Cal.)

40, 321
Bickey etc. Co. v. Miller (Fed.)

128, 129, 173, 340, 342

Page

Bigney v. Tacoma etc. Water

Co. (Wash.) 42, 166, 313, 315.

519
Bincon etc. Co. v. Anaheim etc.

Co. (Fed.) 193, 327, 514,

Bio Bravo Oil Co., Teel v.
Bio Grande etc. Co. v. Prairie

etc. Co. (Colo.) 735

Bio Grande etc. Co., Farmers'

etc. Co. V.
Bio Grande etc. Co., Telluride

etc. Co. V.
Bio Grande etc. Co., United

States V.
Bipley v. Park etc. Co. (Colo.) 359,

360, 614
Biverside etc. Co., Farmers' Co. v.
Biverside etc. Co. v. Qtige (Cal.)

120, 121, 239, 240, 326, 469, 497

511, 512
Biverside etc. Co. v. Sargent

(Cal.) 205, 263, 264, 322, 469,

513
Biverside etc. Co., Price v.
Biverside etc. Co., Bogers v.
Biverside etc. Co., Stockman v.
Bizor, Hindman v.
Bizor, Low v.

Boaring Creek etc. Co. v. An-
thracite etc. Co. (Pa.) 302
Bobbins v. Bangor etc. Co.

(Me.) 336

Bobbins, Coffman v.
Boberts v. Krafts (Cal.) 333, 539
Boberts, Tubbs v.

Bobertson v. People (Colo.) ' 74

595, 596, 608, 609, 618
Bobertson v. Wilmath (Colo.) 288,

327
Bobinson v. Black Diamond Coal

Co. (Cal.) 303

Bobinson, George v.
Bobinson v. Imperial etc. Co.

(Nev.) 186

Bochdale Co. v. King (Eng.) 387
Bocky Ford C. B. L. L. ft T. Co.,

Colorado Land ft W. Co v.
Bocky Ford etc. Co., Paige v.
Bocky Ford etc. Co., True v.
Bodgers v. Pitt (Fed.) 56, 264, 266.

269, 272, 274, 307, 322
Boeder v. Stein (Nev.) 264, 265,

267
Bogan, Helena v.
Bogers, Hesperia etc. Co.
Bogers v. Overacker (Cal.) 467,

468, 469, 513, 515
Bogers v. Biverside etc. Co.

(Cal.) 232, 254, 338

TABLE OF CASES.

Ivii

Pag«

Bogers, Bjan t.

Bogen y. Soggs (Cal.) 19

Bogers, Water Co. v.
Bogae Biver Co., Hume v.
BoUinger, Bothsehild Bros. v.
Bollins, Fair bank v.
Bollins, Moon v.
BoUo, York Co. v.
Bominger, Schilling v.
Bondoniy Faulkner v.
Bonnow v. Delmue (Nev.) 325, 767
Bosa, South Yuba Water Co. v.
Rose, Chamock v.
Bose, Churchill v.
Bose, Hammond v.
Bose Y. Mesmer (Cal.) 322, 323,

337, 377, 442, 444
Bose, Moss v.
Boss, Evans v.

BoBsmiller v. State (Wis.) 78

Bothery, New York etc. Oo. v.
Bothsehild Bros. v. Bollinger

(Wash.) . 653

Bound Valley Co., Standart ▼.
Bowell, Freano etc. Co. v.
Bowland v. WiUiams (Or.) 379
Buddell, Daly v.
Buffner, Bowling Coal Co. v.
Bnmbough v. Southern Im. Co.

(N. C.) 402

Bunoon, Beclamation Dist. v.
Bupley V. Welch (Cal.) 20, 197

Buasell, Churchill v.
Butherford v. Lucerne etc. Co.

(Wjo.) 100, 271, 351, 353

Butland v. Bowler (Eng.) 407

Byall, Mechanics^ Foundry v.
Byan v. Bogers (CaL) 259

Byan v. Tutty (Wyo.) 217, 602,

604
Bylands v. Fletcher (Eng.) 256

Bylands, Fletcher v.

Sabron, Barnes v.
Sacramento, Cardwell v.
Sacramento Elec. etc. Co., Clare ▼.
Sadler, Alcorn v.

Saint V. Guerrerio (Colo.) 97, 100,

120, 235, 325
St. Amand v. Lehman (Ga.) 578,

579. '582, 585, '586
St. Anthony Co. v. Minneapolis

(Minn.) 446

St Anthony Water Power Co.,

Minnesota Loan & Trust *Co. v.
St. Helena etc. Co. y. Forbes

(Cal.) 391, 520

St. Helena etc. Co. v. Spratt

(Mont.) 391

Page

St. John V. Kidd (Cal.) 355, 367

St. Louis Co., Wolf V.

St. Vrain, Beaver Brook Bes. &

C. Co. V.
Salambo Min. Co., Morton v.
Salazar v. Smart (Mont.) 186

Saldunbehere, Watterson v.
Salem v. Salem etc. Co. (Or.) 444
Salem etc. Co., Salem v.
Salem F. M. Co. v. Lord (Or.) 41,

459
Salina etc. Co. v. Salina etc. Co.

(Utah) 167, 345

Salina etc. Co., Salina etc. Co. v.
Salt Lake City v. Salt Lake etc.

Co. (Utah) 14, 29, 44, 97, 100, 109
120, 193, 198, 240, 397, 402
Salt Lake etc. Co., Salt Lake

City v.
Salt B. Co., Hayois v.
Salt Biver etc. Co., Henshaw v.
Salt Biver Co. v. Nelssen (Ariz.)

632, 641
Salt Biver etc. Co. v. Slosser

(Ariz.) 350, 352

Salt Biver etc. Co., Slosser v.
Salt Biver etc. v. Van Fossen

(Ariz.) 352

Salt Union etc. v. Brunner

(Eng.) 581

Sammons v. Kearney Power etc.

Co. (Neb.) 336, 626, 631, 634

Sample v. Fresno Flume & Irr.

Co. (Cal.) 635

Sampson v. Hoddinott (Eng.) 407,

464
San Antonio W. Co., Pomona W.

Co, V.
Sand Creek etc. Co. v. Davis

(Colo.) 208, 401

Sander v. Wilson (Wash.) 42, 114,

142
Sanderson, Pennsylvania Coal

Co. V.

Sanderson v. Pennsylvania Coal
Co. (Pa.) 302

San Diego Co., Doyle v.

San Diego etc. Co. v. Jaspar
(Fed.) 632, 636

San Diego etc. Co. v. National

City (Fed.) 629

San Diego etc. Co., Osborne v.

San Diego etc. Co. v. San Diego
(Cal.) 632

San Diego, San Diego etc. Oo. v.

San Diego etc. Co. v. Souther
(Fed.) 634, 636

San Diego etc. Co., Souther v.

Iviii

TABLE OP CASES.

Page

San Dimos etc. Co. v. San Jose

etc. Co. (Cal.) 141

Sand Point etc Co. y. Panhandle

etc. Co. (Idaho) 181, 186

Sandwich v. Bailwaj (Eng.) 408
San Francisco, Spangler v.
San Francisco, Spring Valley W.

Works V.
San Francisco v. Spring Val. W.

Co. (Cal.) 632

San Francisco Sav. Union v.

Reclamation Dist. No. 124

(Cal.) 179

Sanguinetti v. Poftk (Cal.) 165, 175

San Jacinto Dist. Hewitt v.

San Jacinto Irr. Dist., Marra v.

San Jacinto etc. Co., Perrine v.

San Joaquin etc. Co., Crow v.

San Joaquin etc. Co. v. Merced
County (Cal.) 628

San Joaquin etc. Co. v. Stanis-
laus County (Fed.) 626

San Joaquin etc. Co., Trahern v.

San Jose L. & W. Co. v. San
Jose Banch Co. (Cal.) 110, 154

San Jose Land Co., San Jose W.
Co. V.

San Jose Banch Co., San Jose
etc, Co. V.

San Jose W. Co. y. San Jose
Land Co. (U. 8.) 141

San Jose etc. Co., Allen v.

San Jose etc. Co., San Dimos etc.
Co. V.

San Luis Water Co. y. Estrada
(Cal.) 15, 40, 262, 268, 291, 326,

511

San Luis etc. Co. y. Kenilworth
Canal Co. (Colo.) 208, 401

San Luis etc. Co., Zimmler y.

San Miguel etc. Co., Suffolk y.

Sanseyain, Bacouillat y.

Santa Ana etc. Co., Spurgeon y.

Santa Ana W. Co. y. Town of
San Buena Ventura (Fed.) 632

Santa Barbara y. Gould (Cal.) 134,

354, 537, 551

Santa Barbara, Montecito etc.
Co. y.

Santa (^ara etc. Co., Weber y.

Santa Cruz y. Enright (Cal.) 141,

155, 391

Santa Paula Water Co. y. Per-
alta (Cal.) 100, 103, 124, 128, 130,
263 283, 291, 292, 300, 322

Santa Rosa, Peterson y.

Santa Rosa etc. Co. y. Pecas etCi
Co. (Tex.) 41

Pag*
Saratoga etc. Sanatoriam, Ha-
thorn y.

Sargent, Riyerside etc. Co. y.
Saunders y. Newman (Eng.) 407
Sausalito etc. Co., Pacific etc.
Co. y.

Sayage, De Graifenried y.
Saw&y, Huffier y.
Sayre y. Johnson (Mont.) 99, 131,

197
Schaefer y. Marthaler (Minn.) 165
Schenectady y. Furman (N. Y.) 450
Schermeier, Dixon y.

Schilling y. Rominger (Colo.) 43,

44, 144, 197, 323, 333. 392, 396

Schneider y. People (Colo.) 629,

736
Schneider y. Schneider (Colo.)

232^ 253, 309, 396, 401, 403
Schneider, Schneider y.
Schottler, Spring Valley W. W. v.
Schultz y. Winter (Ney.) 325

Schulz y. Sweeney (Ney.) 253, 351,

357, 359, 360
Schwab y. Beam (Fed.) 44, 92, 187,

733

Scott, Eyans y.

Scott y. Longwell (Mich.) 256, 257
Scott y. Toomey (S. Dak.) 118

Scranton v. Wheelec (U. S.) 451
Scudder y. Trenton Delaware

Falls Co. (N. J.) 398

Seamans, Swain y.
Sears etc. Co., Fraler y.
Seattle, Aylmore y.
Seaward y. Duncan (Or.) 134

Seaward y. Pacific etc. Co. (Or.)

131, 214, 269, 272, 273, 274, 275,

287, 344

Seawell, Dayton Min. Co. y.

Sechrist y. Rialto Irr. Dist.
(Cal.) 650

Seeley y. Hunting etc. Assn.
(Utah) 135, 198

Sellick, Perej;oy y.

Selma Irr. Dist., People y.

Semi-Tropic etc. Co., Anaheim
etc. Co. y.

Senior y. Anderson (Cal.) 100, 109,
110, 134, 149, 154, 183, 184, 198,
205, 212, 261, 262, 263, 268,
270, 271, 300, 308, 310, 321, 340,

343, 354, 378, 497

Settlers' Canal Co., Settlers' Irr.

Co. y.
Settlers' Co., Gates y.
Settlers' Irr. Dist. y. Settlers'
. Canal Co. (Idaho> 652

TABLE OF CASES.

lix

Page

Seufert, Coventon v.

Seven Lakes etc. Co. v. New

Loveland «t<:. Co. (Colo.) 281, 284,

295, 296, 297, 310
Seymour, Wright v.
Shaffner, Low v.
Shamleifer v. Council etc. Co.

(Kan.) 442

Shannon, Cooper v. •
Sharp, Fuller v.
Sharpe, Beers v.

Shasta Power Co. v. Walker
(Fed.) 399

Shatzer, Leonard v.

Shaw, Bealejr v.

Shaw, Flickinger v.

Shaw^ Morgan v.

Shelby V. Farmers' etc. Co. (Ida-
ho) 630

Shenandoah etc. 'Co. v. Morgan
(Cal.) 116, 163, 296, 326

Shepard, Partridge v.

Shepard. v. Tulare Irr. Dist.
(Fed.) 650

Shepard, Tulare Irr. Dist. v.

Shepley v. Cowan (U. S.) 117

Sherman v. Fall River etc. Co.
(Mass.) 306

Sheward v. Citizens' etc. Co.
(Cal.) 630

Shields v. Orr. etc. Co. (Nev.) 257,

258

Shirley, Barnard v.
Shively v. Hume (Or.) 41, 162

Shively v. Bowlby (U. S.) 168

Shoemaker v. Hatch (Nev.) 110
Shook V. Colohan (Or.) 41

Shorb V. Beaudry (Cal.) 620, 622
Shotwell V. Dodge (Wash.) 42,

462, 470, 514
Shugar, Canal Co. v.
Shury v. Piggott (Eng.) 406, 433,

439 442 456

Sieber v. Frink (Colo.) ' 181,' 186,

197, 200, 209, 271, 272, 288, 352,

354, 356

Silberbaum, Van Breda v.

Sin, Hartzall v.

Silva V. Hawkins (Cal.) 310

Silver, Swamp Land Dist. v.

Silver Creek etc. Co. v. Hayes

(Cal.) 118, 325, 480, 514

Silver King etc. Co., Crescent

etc. Co. v.
Silver Peak Mines v. Valcalda

(Fed.) 198

Silver etc. Co., Valcalda v.
Simmons, Wim«r v.

Page

Simmons v. Winters (Or.) 162, 190,
205, 264, 275, 295, 341, 342, 359
Simpson v. Williams (Nev.) 264
Simpson, Eddy v.
Simpson, Lobdell v.
Sims V. Smith (Cal.) 302, 304

Singer, Stokoe v.

Slack V. Walcott (Eng.) 434, 443
Slade V. Sullivan (Cal^ 318

Slattery v. Harley (Neb.) 41

Slauson, Southern Cal. By. Co. v.
Slauson, Southern By. Co. v.
Slavin, McCord v.

Sloane v. Glancy (Mont.) 151, 354
Slosser v. Salt River etc. Co.
(Ariz.) 125, 294, 334, 626, 629,

641, 643
Slosser, Salt River etc. Co. v.
Small, McRae v.
Smart, Salazar v.
Smaw, Moore v.

Smith V. Brooklyn (N. Y.) 578, 586
Smith, Brown v.
Smith, Burdge v.

Smith V. City of Rochester (N.

Y.) 450

Smith V, Corbit (Cal.) 283, 291,

295, 340, 342, 343, 454, 462, 466

Smith V. Denniff (Mont.) 41, 65,

Z4, 75, 124, 125, 129, 141, 151, 158,

292, 295, 341, 343, 389, 748

Smith V. Doe (Cal.) 19, 141

Smith V. Green (Cal.) 326, 351, 369

Smith V. Hampshire (Cal.) 255, 372,

373

Smith V. Hawkins (Cal.) 65, 100,

129, 133, 156, 183, 205, 231, 263,

264, 272, 300, 356, 364, 367, 368,

369, 371, 382, 513
Smith, Healy v.
Smith, Hill v.
Smith V. Hope Min. Co. (Mont.)

354, 355
Smith, Jatunn v.

Smith v. Logan (Nev.) 131, 288,

292, 344, 372, 374

Smith, Longmire v.

Smith, McKinney v.

Smith V. North Canyon- etc. Co.

(Utah) 131, 132, 342, 377, 380
Smith V. O'Hara (Cal.) 102, 127,

300, 337, 345

Smith V. PhUlips (Utah) 329

Smith, Plattsmouth Water Co. v.
Smith, Sims v.

Smith v. Stearns Rancho Co.
(Cal.) 313

TABLE OF CASES.

Page

Smith etc. Co. v. Colorado etc.

Co. (Colo.) 196, 248, 571, 578

Smith, Wolfskin v.

Smyth V. Neal (Or.) 195, 275, 384
Snow V. Parsons (Vt.) 409

Snyder v. Murdock (Utah) 295, 342,

622
Soden, Emporia v.
Boggs, Bogers v.
Sorosis Fruit Co., Calkins v.
Southern Cal. By. Co., De Baker

Southern Cal. Ry. Co. v. Slau-
son (Cal.) 320

V^ Southern Cal. etc. Co. v. Wil-

shire (Cal.) 253, 291, 363, 378,
382, 441, 460, 463, 480, 493, 499,

506

Southern Im. Co., Bumbough v.
Southern Pac. Co. v. Dufour

(Cal.) 543, 555, 561, 579, 581

Southern Pac. Co., Fresno etc. Co.

Southern By, Co. v. Slauson
(Cal.) 523

Souther v. San Biego etc. (Fed.)

. 198, 635, 636, 642, 645

Souther, San Diego etc. Co. v.

South Pasadena v. Pasadena L.
& W. Co. (Cal.) 135, ..629

gouth Platte D. Co., Fort Mor-
gan Co. V.

Southside etc. Co. t. Burson
(Cal.) 103, 270, 291

Southside etc. Co., Handy D. Co.

South Side Irr. Co., Merrill v.
South Tule etc. Co. v. King (Cal.)

127, 128, 345

Southworth, Farmers' etc. Co. v.
South Yuba Water Co. v. Bosa

(Cal.) 109, 402

Spangler v. San Francisco (Cal.)

162
Spargur v. Heard (Cal.) 312, 380,

499
Speake v. Hamilton (Or.) 110

Spencer, Elmhurst v.
Spencer, Watts v.
Speyer, Pierson v.
Spicer, Beed v.
Spokane etc. Co., Beach v.
Sponer, Nelson v.
Sp9n«r, Nielson v.

Spratt V. Helena Co. (Mont.) 402
Spratt, Helena etc. Co. v.
Spratt, St. Helena etc. Co. v.

Page

Springfield v. Jenkins (Mo.) 578

Springs, Manigault v.

Spring etc. Co., Tarter v.

Spring Valley etc. Co., Farley v.

Spring Valley etc. Works v. Fi-

field (Cal.) 331

Spring Valley etc. Works, Fifield

Spring Val. W. Works v. San
Francisco (Cal.) 632

Spring Valley W. Co., San Fran-
cisco V.

Spring Valley W. W. v. Schottler
(U. S.) 236, 238, 243, 244, 361,
423, 424, 506, 626, 628, 632

Spurgeon v. Santa Ana etc. Co.

(Cal.) 623

Squires v. Livezey (Colo.) 307, 596
Stafford, Gould v.

Stalling V. Ferrin (Utah) 92, 351,

368

Standard etc. Co., Hill v.
Standard Oil Co., Kinnaird t.
Standart v. Farmers' etc. Co.

(Colo.) 644

Standart v. Bound Valley Co.

(Cal.) 127, 230, 340

Standart, Posachane etc. Co. v.
Standford v. Felt (Cal.) 178, 312,
380, 454, 455^ 458, 493, 499, 514
Stanislaus County, San Joaquin

etc. Co. V.
Stanislaus Water Co. v. Bachman
(Cal.) 120, 127, 241, 244, 295, 325,
336, 337, 338, 342, 344, 432, 628,
629, 633, 634, 636, 637, 642

State Bank, Jarvis v.

*State V. Board of Assessment (S.

Dak.) 604

State V. Brown (Wash.) 653

State V. District Court (Mont.)

309, 311

State, HoUister v.

State V. Horton (Nev.) 547

State V. Minnesota etc. Co.

(Mont.) 626, 629

State V. Quintic (Mont,) 369, 370
State, Bossmiller v.
State V. Superior Court (Wash.)

81, 179, 232, 390, 392, 396, 397, 401,
402, 459, 484, 516, 517, 521, 791
State V. Tiffany (Wash.) 331

State V. Three Sisters Irr. Co.

(Fed.) 688

State V. Washington Irr. Co.

(Wash.) 634

TABLE OF CASES.

Izi

Pagfi

State V. White River Power Co.

(Wash.) 392, 397

Stayton, Coombs v.
Stearns Rancho Co., Smith v.
Stein, Boeder v.

Steinberg v. Meyer (CaL) 322, 513
Stein Canal Co. v. Kern Island

etc Co. (Cal.) 300

Steinwender, McBride v.
Stenger v. Tharp (S. Dak) 41, 264,

458
Stephens v. Mansfield (Cal.) 353

Stephens, People v.
Sterling Irr. Co. v. Downer

(Colo.) 609, 612

Stems, Noteware v.
Sterritt V. Young (Wyo.) 147, 148,

389
Stevens, People v.
Stevens, Stewart v.
Stevenson, Edgar v.
Stevenson, Reno Smelting Wor&s

Stewart, Boise etc. Co. v.

Stewart v. Stevens (Colo.) 145, 389

Stickler v. Colorado Springs

(Colo.) 167

Stiekney v. Hanrahan (Idaho) 263
Stillwater Co. v. Farmer (Minn.)

578, 579, 586, 589
Stillwater Co., Farmer v.
StillweD, Church v.
Stimson v. Alessandro Irr. Dist.

(Cal.) 650

Stock, Cline v.
Stockman v. Riverside etc. Co.

(Cal.) 247, 358, 387

Stockport W. W. Co. v. Potter

(Eng.) 429, 445

Stokoe V. Singer (Eng.) 439

Stone V. BumpuB (Cal.) 198, 247,

285, 300, 302, 358
Stone, Hoffmian v.
Stoneman, Bean v.

Stoner v. Man (Wyo.) 132

Stoner, Mau v.
Story, Hewitt v.

Story V. Wolverton (Mont.) 64, 136
Stowell, Allen v.

Stpwell V. Johnson (Utah) 44, 69,

103
Stiait V. Brown (Nev.) 163, 534,

543
Strait, Irwin v.

Strataahan, Table Mt. M. O). v.
Strickler v. Colorado Springs

(Colo.) 97, 106, 125, 198, 288,
292, 295,. 297, 339, 340, 342

Page

Strickley v. Highland Boy Co.

(U. S.) 396

Strong V. Baldwin (Cal.) 263, 326
Stroud, Beer v.
Struby etc. Co. v. Davis (Colo.)

622
Stuart V. Noble etc. Co. (Idaho)

124, 258
Stufflebeami v. Adelsbach (Cal.)

256
Stump, Joy V.

Sturr V. Beck (Dak.) 117

Sturr V. Beck (U. S.) 41, 42, 46,

48, 82, 85, 92, 112, 114, 116, 117,

154
Suffolk etc. Co. V. San Miguel

etc. Co. (Colo.) 305, 316

Suisun V. De Freitas (Cal.) 204, 322
Suitor, HaUock v.
Sullivan, Dorris v.
Sullivan, Slade v.
Superior Court, Eureka Lake etc.

Co. V.
Superior Court, Glide v.
Superior Court, Golden etc. Co.

Superior Court, Johnson v.
Superior Court, Newman v.
Superior Court, Reclamation Dist.

Superior Court, State v.

Sullivan v. Dunphy (Mont.) 370

Sullivan v. Northern Spy Min.

Co. (Utah) 590

Supply etc. Co. v. Elliott (Colo.)

623, 646
Swain v. Semans (U. S.) 387

Swamp Land Dist. No. 110 v.

Feck (Cal.) 178

Swamp Land Dist. No. 307 v.

Glide (Cal.) 178

Swamp Land Dist. No. 307 v.

Gwynn (Cal.) 178

Swamp Land Dist. No. 121 v.

Haggin (Cal.) 178

Swamp Land Dist. No. 150 v.

Silver (Cal.) 178

Swamp Land Dist. No. 407 v.

Wilcox (Cal.) 178

Swan, Evans v.
Swan R. Min. Co., Fuller v.
Sweeney, Sehulz v.
Sweet V. City of Syracuse (N.

Y.) 422

Sweetland v. Olsen (Mont.) 295,

341, 342
Sweetman, Hoye v.
Swett, Heckman v.

Izii

TABLE OF CASES.

Page

gwift V. Goodrich (Cal.) 129, 230,
422, 442, 454, 458, 514
Swift, Green v.
Swindon W. W. etc. Co., Birks &

Wilts Canal Co. v.
Swindon W. W. Co. v. Wilts etc.

Co. (Eng.) 473, 493, 507

Switzer, Power v.

Table Mt. M. Co. v. Stranahan

(Cal.) 345

Tacoma etc., Meyer v,
Tacoma etc. Water Co., Bigney v.
Talbot ▼. Hudson (Mass.) 398

Talbott V. Butte etc. Co. (Mont.)

374, 380
Talcott V. Mastin (Colo.) 128, 623
Tampa W. W. Co. v. Cline (Fla.)

579
Tangeman, Learned v.
Tarbet, Harris v.
Tarter v. Spring etc. Mining Co.

(Cal.) 18, 19, 105

Taughenbaugh v. Clark (Colo.)

100, 199, 200, 271
Taylor v. Abbott (Ckl.) 109, 151,

154, 184, 194
Taylor, Ellinghouse v.
Taylor, Kelly v.
Taylor, Marshall y.
Taylor, Union etc. Co. v.
Taylor v. Welch (Or.) 41, 534

Taylor, West v.
Tell V. Rio Bravo OU Co. (Tex.)

306, 318
Telluride v. Blair (Colo.) 98, 103,

123
Telluride v. Davis (Colo.) 131, 292
Telluride etc. Co. v. Rio Grande

etc. Co. (U. S.) 48, 88, 134, 311,

327
Temescal etc. Co., Newport v.
Tenem Ditch Co., Thorpe v.
Tenney v. Miners' Ditch Co.

(Cfel.) 97, 257, 260, 314

TerreU v. Allison (U. S.) 311

Terwilliger, Griseza v.
Tharp, Stenger v.
Thomas, Beatrice Gas Co. v.
Thomas, Dunn v.

Thomas, Estate of (CaL) 622

Thomas v. Guiraud (Colo.) 97, 125,

183, 213, 285, 288, 291
Thomas V. Woodman (Kan.) 511

Thompson v. Lee (Cal.) 97, 182,

195
Thompson v. Perris Irr. Dist.

(Fed.) 650

Thompson, Board of' Supervisors

Thompson, Boskowitz r.

Thompson, Cape v.

Thompson, Miller v.

Thompson, Perris Irr. Dist. v.

Thbrndyke v, Alaska Persever-
ance M. Co. (Fed.) 40, 800

Thornton, Cash v.

Thorp V. Freed (Mont.) 19, 30, 37,
40, 41, 45, 63, 93, 97, 99, 113, 158,

197, 602, 737, 748

Thorp V. Woolman (Mont.) 602, 748

Thorpe v. Tenem Ditch Co.
(Wash.) 42, 110, 125, 292

Three Sisters Irr. Co., State v.

Thropp V. Harper's Ferry etc
Co. (Fed.) . 509

Tieleke, Barkley v.

Tiffany, State v.

Tillotson, Wadsworth v.

Tilton, Oilman v.

Tingley, Murray v.

Titcomb v. Kirk (Cal.) 6, 189, 231
Title etc. Co. v. Kerrigan (Cal.)

608
Todd V. Austin (Conn.) 398

Todd V. CocheU (Cal.) 257

Todd Y- City of York (Neb.). 304
Todd, Gelwicks v.
Todds' etc. Co., White v.
Todmorden Co., Omerod v.
ToUe V. Correth (T6±.) 41, 462

ToUes, Lake v.

Tolman v. Casey (Or.) 110, 288

Tomlinson, Ballard v.
Tone, Ellis v.

Tonkin v. Winzell (Nev.) 167

Toohey v. Campbell (Mont.) 97, 100,

199, 262, 264, 271

Toomey, Scott v.

Topeka etc. Co., Metropolitan

etc. Co. V.
Town V. Missouri Pac. Ry. Co.

(Neb.) 166

Town of San Buena Ventura,

Santa Ana W. Co. v.

Town of Sterling v. Pawnee etc.

Co. (Colo.) 106, 107, 125, 127,

213, 263, 267, 292, 326, 646
Toyaho etc. Co. v. Hutehins

(Ter.) 147, 219, 295, 342, 389
Trade Dollar Min. Co. v. Fraser

(Fed.) 74, 98, 217, 228, 270, 291,

592, 614
Trahern v. San Joaquin etc. Co.

(Cal.) 528

TABLE OP CASES.

1» • •
xui

Pag©

Tramblej t. Laterman (N. Mex.)

4A, 253, 292, 384
Travelers' Ins. Co. ▼. Childs

(Colo.) 127, 322

Tregea, Board of Directors v.
Tregea v. Modesto Irr. Dist. (U.

8.) 650

Tregea v. Owens (Cal.) 649

Trenton Delaware I^lls Co.,

Sendder t.
Trespalacios Bice etc. C6., Bor-
den V.
Tripp, Prickman t.
Troy Iron Co., Coming t.
Truckee etc. Co., People v.
True y. Bockj Ford etc. Co.

(Colo.) 622

Trullenger, Oregon Iron Co. v.
Tnbbe v. Boberts (Colo.) 206

Tucker, City of Paris v.
Tucker v. Jones (Mont.) 295, 341,

342, 353
Tulare Connty v. May (Cal.) 178

Tulase Irr. Dist. v. Shepard (U.
. S.) 650

Tulare Irr. Dist., Shepard t.
Tuolumne etc. Co. v. Chapman

(Cal.) 314, 315, 325

Tuolumne Co., Hoffman ▼.
Tuolumne etc. Co. v. Maier (Qeil.)

109
Tuolumne etc. Co., Turner v.
Tuolumne etc Co., Weidekind v.
Turgeon, Kinkead v.
Turlock Irr'. D. v. Williams

(CaL) 648

Turnbull, People v.

Turner v. Cole (Or.) 295, 342, 347,

351, 354, 355
Turner v. Mirfield (Eng.) 306

Turner, Beclamation D. y.
Turner v. Tuolumne etc. Co.

(CaL) 259, 371

Tuscumbia etQ. B. Co., Aldridge v.
TuthUl, Matter of (N. Y.) 388

Tuttle, Jobling y.
Tutty, ftyan v.
Twaddle v. Winters (Nev.) 29, 44,

83, 97, 103, 264, 266, 267, 313, 327,

329, 726, 767
Twambley v. Luterman (N. Mez.) 45
Twin Falls Co. v. lind (Idaho) 267
Twin Lakes Co., Downey v.
Tyler, Cave v.
Tyler v. Wilkinson (Fed.) 235, 409,

421, 422, 431, 439, 443, 453, 454,

458, 478, 487, 488

Page

Tyler v. Wilkinson (Mass.) 422

l^on V. Despain (O>lo.) 81, 110,

144, 146

Ukiah W. Co., Farmer v.
Ulbricht v. Eufaula Water Co.

(Ala.) 491

Uncle .Sam Min. Co., Mallet v.
Underwood, Burdge v.
Unger v. Moon«y (C^L) 374

Union Cattle 0>., Barton v.
Union County Freeholders, Mc-

Kinley v.
Union etc. Co. v. Ferris (Fed.)

37, 44, 110, 411, 458, 462
Union etc. Co., Howcroft v.
Union etc. Co., Priest v.
Union etc. Co. v. Tayloi; (U. S.)

345
Union Lumber Co., Bichter v.
Union Min. Co. v. Dangberg

(Fed.) 37, 44, 56, 71, 97, 100, 105,

116, 117, 123, 125, 188, 206, 261,

264, 268, 269, 270, 271, 292, 295,

316, 322, 345, 381, 454, 458, 464,

514
Union Water Co. v. Crary (Cal.)

369
Upjohn V. Bichland Township

(Mich.) 306

Upper Platte etc. Co. v. Fort

Morgan etc. Co. (Colo.) 616

United States v. Conrad Inv. Co.

(Fed.) 27, 64, 88, 136, 137, 140,
226, 227, 276, 277, 325, 420, 686
United States, Krall v.
United States v. North Bloomfield

Co. (Fed.) 303

United States, North Bloomfield

United States v. Bio Grande etc.

Co. (U. S.) 44, 45, 47, 48, 80,

81, 86, 87, 137, 168
United States etc. Co. v. Gallagos

(Fed.) 114, 145, 263, 389

United States, Winters v.
Urton, Fitzgerald v.
Utah Co., J^rorth Point Co. v.
Utah etc. Co., Biggs v.
Utah Fuel Co., Whitmore v.
Ult V. Frey (Ckl.) 185, 205, 206,

308, 310, 350, 351, 355

Vailes, Lamson v.

Valcalda v. Silver etc. Co. (Fed.)

Valcalda, Silver Peak Mines v.

367

Ixiv

TABLE OP CASES.

Page

Vallejo, "Winelow v.

Vallejos, Candelaria v.

Valley etc. Co., Hecton etc. Co.

V. %

Van Bibber v. Hilton (Cal.) 40, 112,

133, 328
Van Breda ▼. Silberbaur (Eng.)

416
Van Camp v. Emery (Idaho) 188,

263, 265
Vance, Carroll v.

Vanderpool v. Gorman (N. Y.) 402
Van Fossen, Salt River etc. Co. v.
Van Loben Sels, Beclamation

Difit. V.
Van Sickle v. Haines (Nev.) 37,
44, 68, 109, 317, 382, 419, 766
Vamer v. Martin (W. Va.) 392

Varni, Bazzo v.
Vaughan, Miller v.
Vaughn, Butte Co. v.
Ventura etc. Co. v. Meiners (Cal.)

474

Verdugo, Glassell v,

Verdugo W. Co. t. Verdugo

(Cal.) 131, 167, 314, 320, 323,

386, 442, 445, 459, 466, 467, 470,
528, 534, 535, 537, 538, 540, 587
Verdugo, Verdugo W. Co. v.
Vermont Electric Co., Avery v.
Vernon Irr. Co. v. Los Angeles

(Cal.) 4, 116, 154, 410, 422, 425,
442, 463, 484, 490, 495, 506
Vestal v. Young (Cal.) 286, 312

Vickers, Nephi Irr. Co. v,
Vincent v. Chicago By. Co. (111.)

624
Vineland etc. Co. v. Azusa etc.

Co. (Cal.) 291, 535, 536, 538, 539,

548, 551, 555
Vineland Irr. Dist., Baxter v.
Village of Delhi v. Youmans (N.

Y.) 538

Virdin, Bowman v.
Virginia etc. Co., Cole Silver M. '

Co. V.
Vivian, Mud Cr. Irr. A. ft M. Co.

Wabash etc. Co., Copper etc. Co.

Waddell, Palmer v.
Wadflworth etc. Co. v. Brown
(Colo.) 288, 290, 307, 352, 618,

623
Wadsworth v. Tillotson (Conn.)

454

Pag»
Waha Co. v. Lewiston Co. (Fed.)

217, 223, 311, 592
Wahl Co. v. Lewiston Co. (Fed.)

127
Wahle V. Beinbach (111.) 306

Wailuku etc. Co., Hawaiian Com.

etc. Co. V.
Walcott, Slack v.
Waldron, Lorenz v.
Walker v. Chanslor (CaA.) 330

Walker v. Emerson (Cal.) 151, 312,

380 499
Walker v. LiUingston (Cal.) ^264,

444, 445, 518
Walker v. McGinness (Idaho) 288,

289
Walker, Nesalhous v.
Walker, Shasta Power Co. v.
Walker, Ware v.
Walkinshaw, Katz v. •
Wallace, McCann v.
Wallace, Walsh v.

Walley v. Platte Co. (Colo.) 257
Walsh v. Wallace (Nev.) 186, 197,

329, 767
Wand, Wood v.
Ward, Race v.
Ward, Wilson v.

Ware v. Walker (CaL) • 256, 291

Waring v. Crow (Cal.) 367

Wasatch etc. Co. v. Fulton

(Utah) 376

WaiBdale, Manning v.
Washington etc. Assn., Pnrdin v.
Washington Irr. Co., Atkinson v.
Washington Irr. Co., State v.
Washoe Lake etc. Ditch Co.,

Candler v.
Watehumna Water Co. v. Pogue

(Cal.) 326

Water Co. v. Richardson (Cal.) 370
Water Co. v. Rogers (Cal.) 374

Water Supply Co. v. Larimer Co.

(Colo.) 186, 198, 205, 206, 209,
218, 252, 253, 263, 334
Water Supply Co., Larimer etc.

Co. V.
Watkins L. Co. v. Clements (Tex.) 41
Watkins Land Co., Clements v.
Watson V. Colusa, Parrot Min.

etc. Co. (Mont.) 328

Watsonville W. Co., Duckworth

Watsonville etc. Co., Rianda v.
Watterson v. Saldunbehere (Cal.)

154, 184, 185, 325
Wattier v. MHler (Or.) 382

TABLE OP CASES.

IXY

Page

Wattier, Parkflville 6tc. Diet. v.
Watts V. Spencer (Or.) 203, 312,

323, 324, 347, 351, 353, 375, 377,

379, 380
Weaver, Cooger v.

Weaver v. Conger (OaL) 103, 194,

196
^'Weaver v. Eureka etc. Co. (Cal.)

177, 189, 195, 196, 198, 201, 359
Webb V. Portland Cement Co.

(Fed.) 431, 432, 493, 507

Weber v. Santa Clara etc. Co.

(GaL) 528

Webster, Mt. Carmel Pmit Co. v.
Weed T. Goodwin (Wash.) 396

Wege, Gutierrez v.
Weidekind v. Tuolumne etc. Co.

(GaL) 257

Weill V. Baldwin (Cal.) 254

Weimer v. Lowery (Oal.) 19, 231

Weinreieh v. Hensley (Cal.) 178

Weiss V. Oregon Iron & S. Co.

(Or.) 41, 318, 470, 515

Welch V. Garrett (Idaho) 65, 92,

350, 351, 354
Welch, Bupley v.
Welch, Taylor v.

Wellington v. Beck (Colo.) 98

Wells V. Kreyenhagen (Cal.) 200,

201
Wells V. Mantes (Cal.) 183, 184, 185,
189, 192, 194, 203, 210, 211, 364
WeUs V. Price (Idaho) 622

Welwood, Marshall y.
Wenatchee etc. Co., Latham t.
Werner, In re (Cal.) 179

West, Bloom r.
West, Campbell v.
Western Irr, Co. v. Chapman

(Kan.) 626

Western Paper Co. v. Pope (Ind.)

516
Western Union etc. Go. v. Modesto

Irr. Diet. (Cal.) 650

West Los Angeles etc. Co., Yar-

wood V.
West, Bedamation Dist. v.
West V. Taylor (Or.) 166

Weston, Pairplay etc. Co. v.
West Point etc. Co. t. Moroni

etc. Co. (Utah) 123, 310, 316

West Walker B. D. Co., Bur-
bank V.
Whaley, Blankenship v.
Whalon v. North Platte etc. Co.

(Wyo.) 217, 220, 225, 337, 338,

347, 604

Page

Wheatley v. Baugh (Pa.) 581, 584

Wheeler, Board etc. v.

Wheeler, Bree v.

Wheeler v. Northern Irr. 'Co.
(Colo.) 213, 245, 624, 625, 626,
629, 632, 641, 643, 645

Wheeler, Pugh v.

Wheeler, Scanton v.

Whitaker v. McBride (U. S.) 91

White, Crippen v.

White V. Farmers' etc. Co.
(Colo.) 27, 74, 600

White, Farmers' etc. Co. v.

White V. Todds ' etc. Co. (Cal.) 199,

262, 263

White V." White (Eng.) 234, 235,
372, 408, 419, 436, 452, 455

Whitehead, Rhodes v.

White Biver Power Co., State v.

Whiteside, Burnett v.

Whitman, Child v.

Whitmore, Elliott v.

Whitmore v. Pleasant Valley
Co. (Utah) 226, 227, 230, 330, 685

Whitmore v. Utah Fuel Co.
(Utah) 534, 536, 537, 539

Whitson, California Pastoral Co. v.

Wholey v. Caldwey (Cal.) 123, 517

Wicks, Hobart v,

Wiggins V. Muscupiabe etc. Co.
(Cal.) 123, 360, 362, 410, 454, 457,
466, 467, 468, 470, 480, 483, 492,

511, 516

Wilcox, Barkley v.

Wilcox V. Hausch (Cal.) 133, 359,

360

Wilcox, Swamp Land Dist. v.

Wilfong T. Bailey (Hawaiian) 592,

803

Wilhite, Green v,

Wilking V. McCue (Cal.) 163, 183,

382

Wilkinson, Tyler v.

Willard, Courthouse etc. Co. v.

WiUett, Clark v.

Willey V. Decker (Wyo.) 27, 80, 33,

35, 40, 41, 44, 45, 50, 64, 66, 72, 73,

74, 94, 98, 111, 125, 142, 169, 173,

186, 233, 281, 292, 311, 322, 843,

451, 592, 602, 604. 795, 797

Williams v. Altnow (Or.) 486

Williams v. Board of Supervisors

(Cal.) 178

Williams v. Fulmer (Pa.) 451

Williams, Gibbs v.
Wiliams, Gray v.

Williams v. Barter (Cal.) 109, 233,

340, 343, 344

Ixvi

TABLE OF CASES.

Page

Williams, Heath y.

WiUiams v. Moreland (Eng.) 234,

407, 418, 420

Williama, People v.

Williams, Rowland v.

Williams, Simpson v.

Williams, Turlock Irr. Dist. v.

Williamson v. Lock's Creek Oanal
Co. (N. C.) 454

WUlis V. City of P^rry (Iowa)

578, 586

Willow Creek etc. Co. v. Mcln-
tyre (Utah) 44

Willow Creek etc. Co. v. Michael-
son (Utah) 146, 590

Willson v. Cleveland (Cal.) 355

Wilmath, Robertson v.

Wilson V. Alcat]raz Co. (Cal.) 333
Wilson, Baer etc. Co. v.
Wilson V. Higbee (Fed.) 342

Wilson V. Perrault (Idaho) 632, 744
Wilson, Sander v.

Wilson V. Ward (Colo.; 543

Wilterding v. Green (Idaho) 198,

626, 629

Wilts etc. Co., Swindon v.
Wimer v. Simmons (Or.) 248, 292,

351, 354, 377, 380
Wimsette, Raymond v.
Windsor Co., Cache La Poudre
Co. V.

Wiiig, Clough V.

Winslow V. VaUejo (Cal.) 254

Winsor, Crane y.

Winter, Schultz v.

Winter v. Winter (Nev.) 370, 377

Winters, Simmons v.

Winters, Twaddle v.

Winters v^ United States (U. S.)

41, 42, 47, 48, 88, 91, 136, 137, 142
Winzell, Tonkin v.
Witberope, Kinkade v.
Wixon V. Bear River etc. Co,

(Cal.) 18, 36, 104, 302

Wohlford, Best v.

World V. May (Wash.) 232, 338

Wolf V. Crothers (Pa.) 163

Wolf V. St. Louis Co. (Cal.) 257,

258
Wolfskm V. Smith (Cal.) 110, 163,

191, 194, 195, 196, 211, 252, 351,

551, 567
Wolverton, Story v.
Womersley v. Church (Eng.) 306

Wood, Carron v.

Wood v. Edes (Mass.) 409

Wood V. Etiwanda Water Co.

(Cal.) 65, 141, 206, 350, 352

Wood, Fowler v.

Wood ▼. Lowncy (Mont.> 437

Wood v. Moulton (Cal.) 176

Wood, Rickey v.

Wood V. Wand (Eng.) 235, 251, 407,

420, 429
Woodbridge Protection Dist.,

Hutson V.
Woodman, Thomas ▼.
Woodruff, Healy v.
Woodruff V. North Bloomfield

Co. (Fed.) 303, 305, 318

Woodruff, Yeager v.
Woods, Crandall v.
Woodward v. Brown (Cal.) 371

Woolbridge Canal ft Irr. Co., At-
lantic Trust Co. V.
Wooley, Bessemer etc. Co. v.
Woolman v. Garringer (Mont.) 103,

193, 195, 198, 210, 248, 253, 292,

297
Woolman, Thorp v.
Wright v. East Riverside Irr.

Dist. (Fed.) 650

Wright, Gardner v,
Wright V. Howard (Eng.) 407, 428,

431
Wright V. Seymour (Cal.) 168

Wutchumna Water Co. v. Pogue

(Cal.) 97, 110, 359, 498, 511, 514
Wutchumna Water Co. v. Ragle

(Cal.) 372, 373

Wyandouch Club v. Davis (N.

Y.) 422

Wyatt, Larimer etc. Co, v.
Wyatt V. Larrimer etc. Co.

(Colo.) 73, 245,' 263, 288, 292, 334,
626, 641, 643, 644, 645

X. Y. etc. Co. V. Buffalo etc. Co.

(Co\o.) 263, 266, 614

X. Y. Z., Ditch Co., Crippen v.

Yankee Jim etc. Co. v. Crary

(Cal.) 127, 337, 371

Yappan, Maye v.
Yarwood v. West Los Angeles

etc. Co. (Cal.) 534, 535, 538

Yeager v. Woodruff (Utah) 379

Yocco V. Conroy (Cal.) 444

York Co. V. RoUo (Eng.) 517

TABLE OF CASES.

Izvii

Page

York, Todd v.
ToumaiiSy Delhi ▼.
ToamanB, Village of Delhi y.
ToQiig V. Extension Ditch Co.

(Idaho) 328

Tonng, Sterritt v.
Yonngy Vestal v.
Taleta y. Babbitt (Tex.) 635

Page

Yuba Co. y. Cloke (Cal.) 198

Yunker y. Nichols (Colo.) 42, 44,

143, 145, 197, 231, 263, 302, 338.

389, 392, 396

Zimmerman, Larin^er etc. Go. y.
Zimmler y. San Luis etc. Co.,
(Cal.) 37, 126, 232, 254

The general law of appropriation of water will be foand discussed in
the following books:

YALE ON MINING CLAIMS AND WATER RIGHTS (1867). Best for
the history of the subject and its discussion of the early California eases.

BLANCHARD AND WEEKS ON MINING CLAIMS AND WATER
BIGHTS (1877).

POMEROY ON RIPARIAN RIGHTS (1887). Written by Professor Pome-
roy to stay the encroachment of the law of appropriation upon the com-
mon law of riparian rights, and to vindicate what is now called the
California doctrine — a recognition of both systems. An edition by H. C.
Black is referred to as Black's Pomeroy. In the present book, references
are to the original edition of 1887.

LINDLEY ON MINES. For the general public land law, and for the
principles governing pollution of waters by mining.

KINNEY ON IRRIGATION (18M).

WORKS ON IRRIGATION (1900). Contains a discussion of the law of
canal companies as public service corporations.

LONG ON IRRIGATION (1901).

PARNHAM^ ON WATERS (1904).

MILLS' IRRIGATION MANUAL (1907).

ARTICLE "IRRIGATION," in 17 American and English Encyclopedia
of Law, 485, by the author of "Long on Irrigation." The writer is in-
formed that the article upon ' * Waters and Watercourses ' ' in the Encyclo-
pedia of Law and Procedure ("Cyc") is being written by Mr. H.' C.
Black.

NOTES TO AMERICAN STATE REPORTS AND LAWYERS' RE-
PORTS ANNOTATED, especiaUy 43 Am. Dec. 269, 60 Am. St. Rep. 799,
93 Am. St. Rep. 711, 30 L. R. A. 665.

(Ixix)

WATER RIGHTS

IN THE

WESTERN STATES.

WATER RIGHTS f

IN THE

WESTERN STATES

PART I.

THE LAW OF APPROPRIATION.

CHAPTER I.

HISTORICAL REVIEW.

A. OBIGIN OP THE DOCTEINE OP APPROPRIATION.

J 1. Calif omja before the arrival of pioneers.

{ 2. Mexican law.

i 3. Costoma of minera.

i 4. The eaatoma and the eonrt.

i 5. Irwin t. Phmips.

B. DEVELOPMENT OP THE DOCTRINE.

S 6. Irwin y. Phillips followed.

I 7. Was this new rule to be made to conform to the common lawf

5 8. Was this judicial legislation f

§ 9. How far applicable to other pursuits than mining?

§ 10. Extension beyond California.

C. EABLY LEGISLATION.

§ 11. Congress and the public domain.

§ 12. Federal statutes of 1866 and 1870.

§ 13. Comments on these Federal statutes.

S 14. State legislation.

D. THE CONFLICT OVER RIPARIAN RIGHTS.

! 15. Private title to land and new industries.

§ 16. The law and irrigation.

§ 17. Same.

§ 18. Riparian rights before Lux v. Haggin.

I 19. Same.

\ 30. Lux ▼. Haggin.

Water Right*— 1 (1)

2 THE LAW OF APPBOPBIATION. S 1

§ 21 BMult of Lux y. Haggin.

9 22. Bipamn rights upheld in eleven States and Territories.

S 23. Biparian rights lejeeted in seven States and Territories.

9 24. In the supreme eourt of the United States.

E. LATEB AND BECENT LEGISLATION.

§ 25. Irrigation codes.

§ 26. Effect of this legislation upon riparian rights.

9 27. Later Federal legislation.

9 28. National Irrigation Act.

9 29. Water users associations.

§ 30. Irrigation districts.

§ 31. Statement of the doctrine of appropriation.

A. OBIGIN OF THE DOCTBINE OF APPBOPBIATION.

§ 1. Oalifoniia Before the Arrival of Pioneers.— The law of
appropriation of water originated among the miners of California,
in the earliest days of that State, whence it has been copied in
all the Western States and Territories, viz.: Arizona^ California,
Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mex-
ico, North Dakota, Oklahoma, Oregon, South Dakota, Texas,
Utah, Washington and Wyoming.^

Gold was discovered in California by Marshall in Janoaiy,
1848. The treaty of Guadalupe Hidalgo with Mexico was pro-
claimed July 4, 1848, ceding to the United States the region now
covered ^ -^ California, Nevada, Utah, and part of Arizona and
New Mexico. In 1853 the Gadsden purchase embraced part of
Arizona and New Mexico.^

After the discovery of gold in California in 1848, the men who
came there in such numbers were from all parts of the country,
even of the world. Their spirit was the rough-and-ready one of
the pioneer, who meets new conditions in the way best at hand,
not bound to follow the ways of the places he left behind if they
do not suit his purpose. Their very coming to a strange wilder-
ness was itself a breach of precedent. They left behind them
much of the established law of real property.'

Nor did they find much established law of any kind where they
came. California was, at the beginning of- the century, a Span-
ish missionary territory; That part to which the miners came was
known to the Mexicans as Alta California, and was regarded as

1 Bee infra, sees. 22, 23. 8 As to the common-law roles eon-

s Idndley on Mines, sec. 40. ceming waters, see Part II.

HISTORICAL BEVIEW.

only a set of colonies extending northward from the original set-
tlements in Baja California, the peninsula, which is still Mexican
territory.^ Under the Spanish rule that preceded the Mexican
BcYolution, these colonies were on the outskirts of civilization,
needing but few laws, and little regard being paid to the strict
letter of even those. With the revolution which severed Mexico
from the Spanish Crown came disorder and disorganization. The
missions were broken up, the presidios neglected, and no new sys-
tem was adopted and enforced in place of the one which had fallen
into disuse. Land had never been, previously to the acquisition
of the country by the Americans, of much value. The wealth of
the colonists consisted principally in their cattle and horses, which
were sold for a trifling sum. During the disorders which charac-
terized the Mexican regime, land can be said to have had scarcely
any value — at all events, not a value worth the trouble and ex-
pense of procuring a pelf ect title under the colonization laws of
Mexico and Spain. No mail facilities were enjoyed — ^long jour-
neys had to be made to the capital of the province, in the midst
of civil disorders and revolution, in order to procure a perfect
title. Men could not always, perhaps but seldom, be found, who
were capable of making the necessary surveys. This condition of
things led, in some cases without taking any steps to obtain a
title, in others after having taken only the incipient proceedings,
to the practice of taking possession, or at least of clai/ ng, large
tracts of land which had not been surveyed, and the boundaries
of which were undefined and even unknown. This system con-
tinued until the conquest of the country — until the discovery of
gold— until the Americans thronged into Northern Califomia, a
portion of the country which could be said previously to have con-
tained scarcely any population except Indians.^

§ 2. Mexican Law. — ^What little of the Mexican law had at
the time been actually enforced with regard to the use of waters

« Bee "Rojte, "California,'' in the
American Commonwealth Series.

s Preface by Judge Bennett to 1
CaL

Coneeming the ancient Kexican'
eolonitttion in Baja Califomia, the
writer of this book, on a trip aeross
the middle of the peninsula a few
yean ago, learned of eTidences of

irrigation on a very small scale in
the vicinity of the Missions, but at
the present day the peninsula is
overrun with a heavy srowth of
cactus, and probably afways has
been. The stories of the old Mexi-
can and Spanish irrigation here are
much exaggerated.

THE LAW OF APPBOPBIATIOX.

S t

would, even if continued in force, have interfered little with the
miners helping themselves to the water they wanted and had to
have. The Mexican law, so far as it was enforced, regarded the
waters as held by the pueblos (or agricultural villages) in trust
for farmers on neighboring lands, and so left the water open to
use by all in the neighborhood. This right in the whole neighbor-
hood was superior to that of the individual proprietors through
whose fields the stream chanced to run.^ A little of this Mexican
law is of force to-day, in California, in that some cities, notably,
after much litigation, Los Angeles, have been held to succeed to
the rights of a pueblo to public water supply,^ though the extent of

e Lux ▼. Haggin, 69 Cal. 255, 10
Pac. 674; Vernon Irr. Co. v. Los
Angeles, 106 Cal. 237, 39 Pac. 762;
Los Angeles v. Los Angeles etc. Co.
(Cal. Sup.), 93 Pac. 869.

7 Feliz Y. Los Angeles, 58 Cal. 73;
Lux V. Haggin^ 69 Cal. 255, 10 Pac.
674; Vernon Irr. Co. v. Los Angeles,
106 Cal. 237, 39 Pac. 762; Los An-
geles V. Pomeroy, 124 Cal. 597,^ 57
Pac. 585; Los Angeles v. Los An-
geles etc. Co. (Cal. Sup.), 93 Pac.
869. See, also, Anaheim W. Co. v.
Puller, 150 Cal. 327, 88 Pac. 978;
Fellows V. Los Angeles, 151 Cal. 52,
90 Pac. 137. This pueblo right is
set forth in Lux v. Haggin: **By
analogy, and in conformity with the
principles of that decision [Hart v.
Burnett, 15 Cal. 530], we hold the
pueblos had a species of property
in the flowing waters within their
limits, or a certain right or title in
their use, in trust, to be dis-
tributed to the common lands, and
the lands originally set apart to the
settlers, or subsequently granted by

the municipal authorities

Each pueblo was quasi a public cor-
poration. "By the scheme of the
Mexican law it was treated as an
entity or person, having a right .as
such, and, by reason of its title to
the four leagues of land, to the use
of the waters of the river on which
it was situated, while, as a political
body, it was vested with power, by
ordinance, to provide for a distribu-
tion of the waters to those for whose
benefit the right and power were con-
ferred From tne foregoing it

appears that the riparian proprietor
could not appropriate water in such

manner as should interfere with the
common use or destiny which a
pueblo on the stream should haye
given to the waters; and, semble,
that the pueblos had a preference
or prior right to consume the waters,
even as against an upper riparian
proprietor.*' Lux v. Haggin, 69
Cal. 255, 10 Pac. 674.

By the Act of 1850, page 155, it
was provided that the city of Los
Angeles succeeded ' ' to all the rights,
claims, and powers of the Pueblo cie
Los Angeles in regard to property.*'

The pueblo right of Los Angeles
was considered in another case, Ver-
non Irr. Co. V. Los Angeles, 106 Cal.
237, 39 Pac. 762, where it was said
that the Mexican law regarded the
waters as public property and held
by the pueblo (where there was one)
for the benefit of the inhabitants and
to induce settlement; also in Los
Angeles v. Pomeroy, 124 Cal. 597, 57
Pac. 585, to the same effect, and
further holding that the pueblo right
of Los Augeles grows with the
growth of the city. Los Angeles v.
Pomeroy went to supreme court of
the United States under the name of
Hooker v. Los Angeles, 188 U. S.
314, 47 L. ed. 487, 23 Sup. Ct. Rep.
395, where the pueblo right was up-
held against riparian proprietors,
even those claiming land under
Mexican grants. This was affirmed
in Devine v. Los Angeles, 202 U. S.
313, 50 L. ed. 1046, 26 Sup. Ct. Bep.
652, on the ground that the contro-
versy involved no federal question.
See, also, Fellows v. Los Angeles,
151 Cal. 52, 90 Pac. 137.

HISTORICAL REVIEW.

the city's right of use tmder this claim is left open and not, as yet,
decided.®

Aside from the pueblo right, ''By the law of Mexico the run-
ning waters of California were not dedicated to the 'common use
of all the inhabitants in such sense that they could not be deprived
of the common use. " • Waters were publici juris, aside from this
pueblo right, ''with the understanding that if the acequia shall
eross the land of another, or the crown lands, or the land com-
mou to the inhabitants of the pueblo, a license from the private
owner, or from the king, or from the town council, is indispensa-
ble,'* ^<> thus limiting the use to those who have a right of ac-
cess— ^viz., the riparian proprietors or those claiming under them
by a grant of a right of entry or by eminent domain. "Thus, the
waters of innavigable rivers, while they continue such, were sub-
ject to the common use of all who could legally gain access, to
them for purposes necessary to the support of life, but the Mexi-
can government possessed the power of retaining the waters in
their natural channel, or of conceding the exclusive use of por-
tions of them to individuals or corporations, upon such terms and
conditions, and with such limitations, as it saw fit to establish by
law." ^^ In Arizona this passage from Lux v. Haggin was quoted
in support of a statement that the Mexican law resembled the law
of appropriation rather than the conmion law of riparian rights.^
In Gutierres v. Albuquerque etc. Co.** it was conceded that "by
the laws of Mexico in force when the territory of New Mexico
was ceded to the United States, the use of the waters of both
navigable and unnavi gable streams was not limited to riparian
lands, but extended as well to lands which did not lie upon the
banks of the rivers, and that such use was subject to be regu-
lated and controlled by the public authorities."" Government

s City of Loe Angeles ▼. Lob An-
gelee etc Co. (CaL Sup.), 93 Pac.
^f and opinion of Beatty, C. J., Feb.
21i 1908, on denial of rehearing.

9 Lux V. Haggin, 69 Cal. 255, 10
Pae. 674.

10 Eeriche, "Acequia,'' quoted in
Lux V. Haggin, 69 Cal. 265, 10 Pac.
674.

" Lux V. Haggin, 69 Cal. 255, 10
P««. 674.

12 Boquillas Land Co. v. Curtis
(Ariz.), 89 Pac. 504.

13 18S U. S. 545, 47 L. ed. 588, 23
Sup. Ct. Eep. 338.

14 See, also, De Boca v. Pueblo, 10
N. Mex. 38, 60 Pac. 73, concerning
the Mexican law of acequias, on
which the law of Arizona and New
Mexico to-day rests.

THE LAW OF APPBOPBIA.TION.

regulation and control is the salient feature to-day in the con-
tinental law of waters.^

The civil law is further discussed in a later part ^® of this book.
We mention it here as showing that what law had been enforced
at the time the pioneers arrived in California centered chiefly
about pueblos, of which none existed in the mining regions, and
while limiting the use to one who had a right of access to the*
stream (usually a riparian proprietor) did not in effect limit the
use to riparian lands, because there were no riparian proprietors,
and hence put little impediment in the way of the miners help-
ing themselves to the waters they needed.

§ 3. Customs of Miners. — ^The miners were thrown upon their
own resources, and had nothing to rely upon but the customs that
they themselves by their acts and acquiescence established, and
by equally rough-and-ready methods enforced. The fundamental
principle to which these customs clung was that of ''first come
first served." It was the same in everything pertaining to min-
ing. The right to mine, first of aU in importance, was protected
in the first possessor of the mining ground, and that has grown
into the elaborate and intricate system of mining law which we
have to-day. Water was a necessary incident to mining. It fol-
lowed the same rule of first possession, l^istorically, the law of
appropriation of waters is merely a branch of mining law. The
custom was that the first to use the water had the exclusive right
to it."

■

The regulations were numerous, as each mining district had its
own laws, but frequently one set of laws was/ adopted for the
whole county. There were about five hundred districts in Cali-
fornia about 1860, two hundred in Nevada, one hundred each in Ari-
zona, Idaho and Oregon, following in the steps of California.
The essentials of these regulations were everywhere similar.
Mass meetings were held, ofiKcers appointed, including a recorder,

16 Translations of the modem
water laws of Earopean countries
will be found in the publications of
the United States IDepartment of
Agriculture, and in the old report of
Hr. Hall as State Engineer of Cali-
fornia, obtainable from the Secre-
tary of State.

le Part 11, c n.

^7 See statement by reporter in
Titcomb v. Kirk, 51 C3al. 2S9. Con-
cerning the customs of miners and
origin of the law of appropriation,
see an interesting article in 1 Michi-
gan Law Beview, 91. See, also,
Yale on Mining Claims and Water
Bights, chapters VII, YIII; Lindlej
on Mines, see. 40 et seq.

»3

HISTORICAL BEVIEW.

and names adopted ''sensible, poetical, and ridiculous, the last
predominating." All. rights were declared upon the basis of
priority of discovery, location and appropriation. The rules were
engrossed, sometimes with preambles such as ''whereas the Con-
gress of the United States have in their wisdom made it incum-
bent on the miners of the various districts of California, to pro-
vide such laws for the protection and regulation," etc., i. e.. Con- .
gress had taken no steps in the matter. Or "as Congress has
made no rules and regulations," etc.^^

These customs did not follow the common-law rules of riparian
rights because, in the first place, the miners, left so largely to them-
selves, did not know those rules. The miners were of all nationali-
ties, from places where many different systems of law prevailed.
Th^ went off into the wilderness where the law was not represented
at all. The common-law rules would have been entirely unsuited
to such conditions. Under such conditions the fine points of the
law cannot be enforced. The rule of "first come first served" is
nine points of the law, anyway, under such conditions, for de-
fense equally as much as for offense, though the tenth point may
be insisted upon by some distant court. It is easily understood,
and, in a new region, just. On the other hand, the common law
of riparian rights, with its varying method of adjustment, de-
pending upon what is reasonable under the siurrounding circum-
stances, is much more uncertain and refined, and its enforcement
would have been difiKcult. Important, also, was the necessity of
carrying the water far from the stream without returning it, and
of muddying it with mining debris. That, left to themselves, the
miners would not be governed by the common-law rules of
riparian rights was inevitable.

18 Yale on Mining Claims and
Water Bights, 70-84.

Oetober 19, 1850. "We got the
diteh repaired and the water turned
on the flat by Thursday and have
been running off the top dirt. It '9
amazing the amount we move and it
astonishes our neighbors. A lot of
them are looking out for sidehill
^giugs below us and will try the
nme process. Anderson says it
will be a good idea to extend our
diteh and sell water to the miners
who might want to use it, but I

don't see what right we have got
to it more than anybody else. Any-
way, he has put a notice at the head
of the ditch claiming all the water
it will hold, and as there is no law
in the case he says he will make a
law out of the precedent." Diary of
a Forty-Niner, edited by Chauncey
L. Caulfield, who says in a note,
''The first claim to water rights on
record in Nevada County." This
passage is interesting, though pos-
sibly not authentic. The county rec-
ords were destroyed by fire in 1856.

8 THE LAW OF APPROPRIATION. | 4

These customs, it should be repeated, grew up among the min-
ers, and were not rules that the lawyers originated among them-
selves. Lawyers in large numbers came, as they still come, to
new mining camps. But the rough-and-ready spirit of mining
camps carries them along with it. The lack of facilities for ref-
erence and study forces them to depend on their own argument
adapted to their surroundings more than upon precedent.

In 1851, Hon. Stephen J. Field, then a member of the California

legislature from Yuba County, one^of the mining counties, drafted

what was known as the Civil Practice Act, which contained ^' the

first (and very important) statutory recognition of these customs

and rules, vi2. : "In actions respecting mining claims, proof shall

be admitted of the customs, usages or regulations established and

in force at the bar, or diggings, embracing such claim; and such

customs, usages, or regulations, when not in conflict with the

laws and usages of this State, shall govern the decision of the ac-
tion.''«>

§ 4. The GuBtonui and the Court. — ^When the State government
was organized in California, and courts formed in 1850, there was
an immediate conflict, some lawyers urging these customs, and
others urging that the miners mining in the stream-bed should be
treated as tenants at will of the government, and controlled by the
common law as though they were riparian proprietors. As early
as the third volume of the California Reports the matter was
before the supreme court, but the court was not yet ready to
declare this custom concerning the use of waters lawful.-^
The trial judge did adopt it as the basis of his charge. Bat
the supreme court said: **The rule laid down by the court below,
while it is a departure from all the rules governing this descrip-
tion of property, would be impracticable in its application, and
we think it much safer to adhere to known principles and well-
settled law, so far as they can be made applicable to the novel
questions growing out of the peculiar enterprises in which many
of the people of this State are embarked." Moreover, a general
statute has adopted the common law as the rule of decision,^

19 Section 641. 22 Act of April, 1850. Now Politi-

20 Tale, supra. cal Code, see. 4468.

21 Eddy Y. Simpson, 3 Gal. 249^ 58
Am. Dec. 408.

§5

HISTORICAL REVIEW.

and the other above referred to had given reoognition to the cus-
toms of miners only when not in conflict with the laws of the
State.28

This case of Eddy v. Simpson is interesting as foreshadowing
the doctrine which afterward became the rule of the court, that
prior possession of water on public land gives the exclusive right
to its use; and as showing the difficulties the court met in ad-
josting itself to the new conditions arising out of the occupation
by the pioneers of the great, open, public domain.^^

§ 6. Irwin v. Phillips. — ^The next case before the California
court succeeded in having the doctrine of appropriation of water
fully recognized and accepted. This case, Irwin v. Phillips,
5 Cal. 140,^ decided in 1855, is always cited as the original prece-
dent establishing the rule of appropriation. The case was be-
tween a canal owner who had diverted water from the public
lan(J, and a miner who had later located on public land from
which the stream had been diverted. The opinion is of sufficient
importance to be given in full. The court said :

''The several assignments of error will not be separately con-
sidered, because the whole merits of the case depend really
on a single question, and upon that question the case must be
decided. The proposition to be settled is whether the owner of a
canal in the mineral region of this State, constructed for the pur-
pose of supplying water to miners, has the right to divert the
water of a stream from its natural channel, as against the claims
of those who, subsequent to the diversion, take up lands along
the banks of the stream for the purpose of mining. It must be
premised that it is admitted on all sides that the mining claims in
controversy, and the lands through which the stream runs and
through which the canal passes, are a part of the public domain.

a Act of 1851.

^ The diifieultieB in the way of the
eoQit eanaed the court later in a case
involving the diversion of water to re-
mark in BearBiver Water Co. v. New
York Min. Co., 8 CaL 327, at 333, 68
Am. Bee. 325: ''The business of gold
maag was not only new to our peo-
P^, and the cases arising from it new
to onr courts, and without ludieial or
legislative precedent, either in our own
coontrj or in that from which we

have borrowed our jurisprudence; but
there are intrinsic difficulties in the
subject itself that it is almost impossi-
ble to settle satisfactorily, even by
the application to them of the abstract
principles of justice. Yet we are com-
pelled 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. ' '
26 63 Am. Bee. 113.

IC THE LAW OF APPBOFBIATION. § 5

to which there is no claim of private proprietorship; and that
the miners have the right to dig for gold on the public lands was
settled by this court in the case of Hicks et al. v. Bell et al., 3
Cal. 219.

''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 examination of the authorities which support that doctrine,
it will be found to rest upon the fact of the individual rights of
landed proprietors upon the stream, the principle being both
at the civil and common law that the owner of lands on the
banks of a watercourse owns to the middle of the stream, and
has the right in virtue of his proprietorship to the use of the
water in its pure and natural condition. In this case the lands
are the property either of the State or of the United States, and
it is not necessary to decide to which they belong for the pur-
poses of this case. It is certaia that at the common law^the
diversion of watercourses could only be complained of by
riparian owners, who were deprived of the use, or those claiming
directly under them. Can the appellants assert their present
claim as tenants at will? To solve this question it must be kept
in mind that their tenancy is of their own creation, their tene-
ments of their own selection, and subsequent, in point of time,
to the diversion of the stream. They had the right to mine
where they pleased throughout an extensive region, and they
selected the bank of a stream from which the water had been
already turned, for the purpose of supplying the mines at another
point.

''Courts are bound to take notice of the political and social
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 volun-
tary action and assent of the population, whose free and unre-
strained occupation of the mineral region has been tacitly as-
sented to by the one government, and heartily encouraged by the

S 5 HISTOBICAL BBVIEW. 11

expressed legislative policy of the other. If there are, as most
be admitted, many things connected with this system, which are
cmde and undigested, and subject to fluctuation and dispute,
there are still some which a universal sense of necessity and
propriety have so flrmly fixed as that they have come to be
looked upon as having the force and efteet of res judicata.
Among these the most important are the rights of miners to be
protected in the possession of their selected localities, and the
rights of those who, by prior appropriation, have taken the waters
from their natural beds, and by costly artificial works have con-
ducted them for miles over mountains and ravines, to supply
the necessities of gold diggers, and without which the most im-
portant interests of the mineral region would remain without
development. So fully recognized have become those rights,
that, without any specific legislation conferring or confirming
them, they are alluded to and spoken of in various acts of the
legislature in the same manner as if they were rights which had
been vested by the most distinct expression of the will of the
lawmakers; as, for instance, in the Bevenue Act 'canals and
water-races' are declared to be property subject to taxation,
and this when there was none other in the State than such as were
devoted to the use of mining. Section 2 of article 9 of the same
act, providing for the assessment of the property 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 argiunent, that however
much the policy of the State, as indicated by her legislation,
has conferred the privilege to work the mines, it has equally con-
ferred the right to divert the streams from their natural chan-
nels, and as these two rights stand upon an equal footing, when
they conflict, they must be decided by the fact of priority, upon
the maxim of equity, 'Qui prior est in tempore, potior est in jure,'
The miner who selects a piece of ground to work, must take
it as he finds it, subject to prior rights, which have an equal
equity, on account of an equal recognition from the sovereign
power. If it is upon a stream, the waters of which have not
been taken from their bed, they cannot be taken to his prejudice ;
but if they have been already diverted, and for as high and legiti-
mate a purpose as the one he seeks to accomplish, he has no right

12 THE LAW OF APPROPBIATION. § 5

to complain, no right to. interfere with the prior oceupation
of his neighbor, and must abide the disadvantages of his own
selection/'

The theory adopted is that first possession of the stream gives
a better right, because the government, the owner of the lands and
waters, had ''conferred" a title u^on the first appropriator. He
was deemed not only to have a right of possession, but absolute
title by ''recognition" of the government, which owned the lands
over which the water flowed.^*

In view of some later decisions of the California court, it is well to
notice that there was no attempt on the part of the court or any
member of the bench to apply the common-law rules of riparian
rights in a modified form. There was no attempt to treat appropria-
tion as a modification of those rules, or as a blending of those rules
with the new customs. The rules of riparian rights were not
looked to as measuring the rights of the parties at all. On the
contrary, the court, adopting the argument of counsel (after-
ward judge of the supreme court), Baldwin, expressly excluded
riparian rights from a consideration of the case because there
was no private land on the stream. The intention was, said a
contemporaneous writer,^ to provide an entirely new sjnstem,
wherever the mining customs prevailed (which customs prevailed
on what was then all public domain). But at the same time it
must be carefi^ly noted that it was premised in the case as "ad-
mitted on all sides that the lands through which the stream runs
are a part of the public domain, to which there is no claim of
private proprietorship," and "if it is upon a stream the waters
of which have not been taken from their bed, they cannot be
taken to his [meaning the private landowner's] prejudice,"
which exception has since overshadowed the rest, in California.

The rule of appropriation of water was thus established inde-
pendently of legislatipn. The act of April, 1850, had adopted
the common law as a general rule of decision in the State,
and the act of. 1851 had adopted the customs of miners where not
in conflict with the laws of the State, and an act (mentioned
in the opinion) had taxed ditches and canals; but closer than

25» "We hold the absolute property 26 Yale on Mining Claims and Wa-

in sueh cases to pass by appropriation ter Bights, 161.
as it would by grant.*' Ortman v.
Dixon, 13 Cal. 33.

5 1$ HISTORICAL REVIEW. 13

this there was nothing. • Nor were the courts aided by direct
legislation until the act of the Federal Congress of 1866.^

A very concise statement of the situation under which Irwin
V. Phillips was decided is given in a recent case.^ **The history
of this doctrine is well known, and has often been set forth.
It arose in California at a time when government and law were
not yet established, when th^re was no agricultural population
and were no riparian owners, and when streams could be put to
no use except. for mining. From the necessities of the case, there
being no law applicable, the miners- held meetings in each dis-
trict or locality, and adopted regulations by which they agreed
tc be governed. As at that time streams could be put to no use
except for mining, and as the use of large quantities of water was
essential to mining operations, it became settled as one of the
mining customs or regulations that the right to a definite
quantity of water, and to divert it from streams or lakes, could

be acquired by prior appropriation But it was only the

same rule as that by which possession of mining claims was recog-
nized. It was a custom intended to prevent disorder and

forcible dispossession of those who had located mines In

other words, the doctrine in question was not formulated as an
enlightened attempt to adjust the conflicting relations of a large
eonmiunity of individuals. It was a crude attempt to preserve
order and the general peace, and to settle customary rights
among a body of men subject to no law, under which so many
and so valuable rights arose that when the law stepped in it was
obliged to recognize them. . In this way the rule of appropriation
liecame established in the Pacific States, in opposition to the
common law, with reference to streams or bodies of water which
wholly ran through or were situated upon the public landd of the
United States/'

B. DEVELOPMENT OF THE DOCTBINE.'

§ 6. Lrwin y. Phillips Followed. — ^The contest between the com-
mon law and this general principle continued from this case till

^ Yale on Mining Claima and Wa- Am. St. Bep. 697, 93 N. W. 715, 60
ter Bights, 139. L. B. A. 910.

» Meng V. CoflPey, 67 Neb. 500, 108

THE LAW OF APPROPBIATION.

§ 7

that of Grandall v. Woods,^ decided in July, 1857. Cliief
Justice Murray in that case applied the common law where there
was land already on the stream in private ownership. The com-
mon-law right was distinctly applied in favor of a settler prior
in his occupancy to the time of the appropriation. But for a
long period after Grandall v. Woods the right of a prior set-
tler was not again directly litigated, and the law of appropriation
was alone applied. The doctrine of appropriation was assailed
by counsel as late as McDonald v. Bear River Go.,^ in 1859, but
the matter passed unnoticed by tibe court.^^ In Logan v. Dris-
coll,^ the court rebuked counsel for disputing it. Later the doc-
trine was affirmed by the supreme court of the United States.^
The cases succeeding Irwin v. Phillips were devoted to develop-
ing and defining. They were confronted in this by several ques-
tions at the very start.

§ 7. Was This New Bule to be Blade to Conform to the Com-
mon Law of Biparian Bights as a mere modification thereof, or
was it independent of the old rules arising out of riparian rights?

The common law of riparian rights regarded all landowners
through whose land a stream flowed as on an equal footing,
refusing to recognize any right by priority, and giving each a
right to a reasonable use of the stream at any time.^ The doc-
trine of appropriation was unknown to the common law as it
then existed.^ In Phoenix Water Co. v. Fletcher,»« and in HilJ
V . Smith,*^ are found two important cases where the court argued
that the rights of an appropriator were limited to a correlative
use, under the doctrine of riparian rights that the .amount,
manner, and means of use were limited to secure a reasonable
adjustment.^ In Anderson v. Bassman, Judge Morrow arrives
at the conclusion that rights of appropriation and riparian rights

29 8 CaL 136.

80 13 CaL 220.

81 Tale on Mining Claims and Wa-
ter Bights, 157.

82 19 Gal. 623, 81 Am. Dee. 90.
88 Atehison v. Peterson, 87 U. S.

(20 Wall.) 507, 22 L. ed. 414; Basey
▼. Gallagher, 87 U. 8. (20 Wall.) 670,
22 L. ed. 452; Jennison v. Kirk, 98
U. 8. 453, 25 L. ed. 240.

84 Mason v. HiU, 5 Bam. ft AdoL
1; PomeroY on Biparian Bights, see.
4 et seq. see infra. Part IL

85 Ibid,; Pomeroy on Biparian
Bights, sec. 21; Lnz v. Haeein, 69
Cal. 255, 10 Pac. 674.

36 23 OaL 481.

37 27 CaL 476.

8S Compare, also. Salt Lake CStj ▼.
Salt Lake etc. Co., 25 Utah, 456, 71
Pac. 1069.

S 8 HISTORICAL REVIEW. 15

are the same, and limited by reasonableness in the effect on others--
practically dissolving the former doctrine in the latter.^®

But as already pointed out, the original case of Irwin v.
Phillips had repudiated that doctrine entirely. In Hill v. Kin^,^
the court had again done the same. The cases, taken as a whole^i
now firmly establish that the rights of appropriation are deduced^
from the early customs of miners and not from the rules of |
riparian rights, so that the test is not whether a use is reascm- /
able, but whether it is prior in time. It is firmly settled that the
rights rest upon the maxim ^*Qui prior est in tempore, potior est
in jure,** The rules developed have in no way conformed to the
test of reasonableness as defined under the law of riparian rights.
as will be seen later. Riparian rights and appropriation have be-
come established as each entirely distinct and independent of the
other, even in jurisdictions where both systems are in force.^

**The two doctrines stand side by side. They do not necessarily
overthrow each other, but one supplements the other."**

§ 8. Was This Judicial Legislation?— It was urged that the
California court was guilty of judicial legislation, since the
statute of 1850 had expressly declared the common law to be the
rule of decision in that State, generally. Judge Heydenfeldt de-
tended the position of the court in this respect by claiming that
the decisions accorded with a deeper common-law principle by
which established customs are judicially noticed, and presumed,
because of firm establishment, to be lawful. On this ground, he
felt justified in saying in Conger v. Weaver, 6 Cal. 548 :

"In the decisions we have heretofore made upon the subject
of private rights to the public domain, we have applied simply
the rules of the common law. We have found that its principles
have abundantly sufficed for the determination of all disputes
which have come before us ; and we claim that we have neither
modified its rules, nor have we attempted to legislate upon any
pretended ground of their insufficiency." Then the learned
judge, after saying that ''one of the favorite and much indulged

» 140 Fed. 14, at 24. 42 Crawford Co. v. Hathaway, 67

« 8 Cal 336. Neb. 325, 108 Am. St. Bep. 647, 93

« Lux V. Haggin, 69 Cal. 255, 10 N. W. 781, 60 L. B. A. 889.

1*M. 674; San Luis Water Co. v.

Brtada, 117 Oal. 168, 48 Pae. 1075.

16 THE LAW OF APPROPRIATION. { 8

doctrines of the common law is the doctrine of presumption,"
and supporting that statement, proceeds :

''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 also is 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 govern-
ment; that but little, as yet, has been acquired by individuals
by purchase; that our citizens have gone upon the public lands
continuously, from a period anterior to the organization of the
State government to the present time ; upon these lands they hare
dug for gold; excavated mineral rock; constructed ditches,
flumes and canals for conducting water; built mills for sawing
lumber and grinding com ; established farms for cultivating the
earth ; made settlements for the grazing of cattle ; laid off towns
and villages; felled trees; diverted watercourses; and, indeed,
have done, in the various enterprises of life, all that is usual and
necessary In a high condition of civilized development. All of
these are open and notorious facts, charging with notice of them
not only the courts who have to apply the law in reference to
them, but also the government of the United States, which claims
to be the proprietor of these lands ; and the government of the
State, within whose sovereign jurisdiction they exist.

**In the face of these notorious facts, the government of the
United States has not attempted to assert any right of owner-
ship to any of the large body of lands within the mineral region
of the State.

**The State government has not only looked on quiescently
upon this universal appropriation of the public domain for all
of these purposes, but has studiously encouraged them in some
instances, and recognized them in all.

**Now, can it be said, with any propriety of reason or conunon
sense, that the parties to these acts acquired no rights f If thej
have acquired rights, these rights rest upon doctrine of presump-
tion of a grant of right, arising either from the tacit assent of

§s

HISTORICAL BBVIBW.

the sovereign, or from expression of her will in the coarse of her
(general legislation, and, indeed, from both."

Referring to this opinion it was remarked in Lux y. Haggin:
"The law of California, with reference to priority of possession
on the public lands, has been so long established that we are
apt to forget the whole system was built upon a presumption
entertained by the courts of a permission from the United States
to occupy. ' ' **

This Yiew, that the rules of possessory rights on the public
lands are not in derogation of the conmion law, is of practical
importance in deciding whether the statutes since passed affirm-
ing them are to be liberally or narrowly construed. The view
that they rest on a grant (a presumed grant before the Federal
statutes were passed; now an express grant because of those
statutes), and that the United States had full common-law
powers, as sole landowner, to make such grants, so that the rules
are in entire accord with the common law, is elsewhere supported
concerning possessory rights in general.^ As to water, at all
events, however, it is to-day recognized that the rule is in deroga-
tion of the common law.^ Bights equivalent to the possessory
rights could, it is true, be granted by small owners, without any.
hostility to the common law, but when done on such a compre-
hensive scale as to apply universally throughout a whole juris-
diction, the consistency with the conmion law becomes a remote
matter. The inconsistency in detail is inunediate. The common
law developed a set of detailed rules en the supposition that in-
dividnal grants were of minor importance. Grants and rights

« Lux V. Haggin, 69 Cal. 255, 10

M Lindley on Mines, sees. 535 et
wq., 568. Speaking of the theory of
the eztralateTal right in mining: "In-
stead of being in derogation of the
common law, this class of grants is
. in alMohite harmony with it." See.
568.

*5 Lux V. Haggin, 69 Cal. 255,
10 PiM. 674, saying, "The doctrine of
'appropriation,' so called, is not the
doctrine of the common law." At-
ehison v. Peterson, 87 U. S. 507, 22
L. ed. 414; Baaey ▼. Gallagher, 87
^. 8. 670, 22 L. ed. 452 ; Jennison v.
Kirk, 98 U. S. 453, 25 D. ed. 240;
Watar Righta— 2

Tale on Mining Claims and Water
Bights, 129, 137; Pomeroy on Bipar- .
ian Bights, sec. 20. But compare
the following: "When the pioneers
of 1849 reached this State, they
fonad no laws in force governing
rights to take waters from surface
streams for use on nonriparian lands.
Yet it was found that the princi-
ples of the common law, although not'
previously applied to such cases, could
be adapted thereto, and were sufficient
to define and protect such rights under
the new conditions." Shaw, J., in
Katz V. Walkenshaw, 141 CaL 116, 99
Am. St. Bep. 35, 70 Pac. 663, 74 Pac.
766, 64 L. B. A. 236.

18 THE LAW OF APPROPBIATION. § 9

aside from grant were correlated and worked together into the
system of riparian rights. By giving overwhelming importance
to the grant from the United States,. this detailed system was dis-
torted and displaced. The rights of individuals were readjusted
in derogation of the old system. In Yale on Mining Claims and
Water Rights,^® the learned author says:

''The complaint of the supreme court was, in the opinion of
some of its members, that they were compelled to take the place
of the legislature in framing rules in regard to water rights.
This was undoubtedly the case; the only rule adopted by the
legislature touching the subject was the adoption of the common
law as the rule of decision, by the act of April, 1850. It was
therefore, as the chief justice said, left to the courts, and this
can be admitted without injustice to the members of the court in
the days of its early organization."

§ 9. How Far Applicable to Other Pursuits Than Mming?

The California legislature, while, as has been said, providing no
direct legislation concerning waters, by its early mining legis-
lation indirectly complicated the question. The lands on which
operations were carried on belonged to the United States and
were not at the disposal of the State. But the State legislature,
under the guise of regulating procedure in State courts, favored
the miner against others. In 1852, the Possessory Act*^ allowed
possessors of public lands to sue in State courts for interference
with their possession; with a proviso excepting the possessors
of lands for agriculture or grazing from protection against miners
if the land contained mines. This was supplemented in 1855 by
the Indemnity Act,^^ which required the miner who entered upon
the agriculturist to give a bond for whatever damages might fol-
low to the agriculturist's improvements.

In spite of this favoritism shown the miner by the legislature,
the supreme court declared its purpose as far as possible to
place all pursuits on an equal footing.'*® The court restricted the
operation of the statutes. They were held in no way to warrant

46 Pa^ 129. Co., 13 Cal. 220; Wizon v. Bear BWer

47 Stats. 1852, p. 158. etc. Co., 24 Cal. 367, 85 Am. Dec. 69,

48 Act of April 25, 1855. and many other cases ; Tale on Mining
48 Tartar v. Spring etc. Mining Co., Claims and Water Bights, p. 49.

5 Cal. 395; McDonald ▼. B. B. etc.

S 9

HISTORICAL REVIEW.

interference with lands owned by good private title but only
applicable to public lands.*^ The proviso was restricted to such
pnblic lands only as were used strictly for agriculture or grazing
and not apfflied to lands used for dwellings, town lots, sawmills,
etc." The latter two cases in the note held that appropriations
of water to run a sawmill, being prior in time, prevailed against
later appropriations by miners. Even in strictly agricultural
uses (in regard to which the Indemnity Act required indemnity
only where crops were growing, and left the Possessory Act
unaffected in other cases), the court restricted the right of a
miner to a mere right of entry, without the right to destroy any
improvements whatsoever erected by the agriculturist, any such
interference being held still a trespass ; and held that the prefer-
ence amounted only to a right of entry on land, so that a water
right of an agriculturist was protected even against miners.'^
The final result was that all pursuits were treated impartially as
concerns waters.*® In Rogers v. Soggs,^ the court says: **Such,
in general terms, are the rights of the miner; but these rights
are subject to limitations and restrictions, necessary to prevent
an interference with rights of property vested in others, and
which are entitled to equal protection with his own. Thus he has
no right to use water to work his mine which has been appro-
priated to other legitimate purposes.* Nor has he a right to
dig a ditch to convey water to his mine over land in the posses-
sion of another.** Nor can he mine land used for a residence
and for purposes connected therewith .'^^ Or land used for houses,
orchards, vineyards, gardens and the. like. " *^®

In Montana,** it was in a very early case strongly urged that
the doctrine of appropriation applied only to mining and could

^ Tartar ▼. Spring etc. Mining Co.,
5 Cal. 395; Boggs v. Merced, 14
Cal 279; Smith v. Doe, 15 Cal. 100.

» Fitigerald v. Urton, 5 Cal. 308;
Tartar v. Spring etc. Mining Co., 5
Gal. 395; Ortman v. Dixon, 13 Cal.
33.

S2 Sogers ▼. Soggs, 22 Cal. 444;
Levarom ▼. Miller, 34 Cal. 231, 91
Am. Dec. 692.

^ Tale on Mining Claims and Wa-
ter Rights, 139.

^ 24 Cal. 444. Opinion by Crocker,
J. For appellant, John Garber. For
Tcspondent, Searls and Niles (both la-

ter on the Supreme bench). Judg-
ment for appellant.

M Citing Irwin v. Phillips, 5 Cal.
140, 63 Am. Dec. 113; Tartar v. The
Spring Creek Water and Mining Co.,
5 Cal. 395.

66 Citing Burdge v. Underwood, 6
Cal. 46; Weimer v. Lowerj, 11 Cal.
104.

57 Citing Fitzgerald v. Urton, 5
Cal. 308.

58 Citing Smith v. Doe, 15 Cal. 101 ;
Gillan v. Hutchinson, 16 Cal. 153.

69 Thorp V. Freed, 1 Mont. 651.

20 THE LAW OF APPBOPBIATION. 9 10

not bf extended to irrigation, and the only two judges who aat
being divided upon the matter, it passed undecided in tbe case.
In Atchison v. Peterson,^ the supreme court of the United States
upheld the rule as applied to mining, but it was by the decision in
Basey v. Gallagher ®^ that it was established in that court as ap-
plying to irrigation also.

The law to-day (where not modified by statute) is stated as
follows in Natoma etc. Go. v. Hancock ^ (discussing the case of
Bupley V. Welch) :® *'The point, and the only point, contended
for by the defendants was that a prior appropriation of water
for irrigation was of no avail against a 8ub9equent appropria-
tion for mining. The court merely decided that the appropria-
tion for irrigation was good against miners as against others,
and that the defendants could not prevent the water so appro-
priated from flowing into the reservoir prepared for impound-
ing it. This is a doctrine, which, at the present day, no one dis-
putes, but in early mining times the paramount right of the
miner was strenuously insisted upon by the miners, and in the
mining sections often exercised with a high hand, as it was by the
defendants in Rupley v. Welch. ' ' ®*

The Possessory Act is still in force in California.®^ The In-
demnity Act was held unconstitutional,^ but was later upheld.^
No express repeal of the Indemnify Act appears, but it is
probably superseded by the Federal statutes concerning public
lands and mining.

§ 10. Extension Beyond GaUfomia. — ^The California decisions
regarding rights upon the public domain were adopted in the
other parts of the West in the very first decisions of their courts.

''So far, then, as the anomalous rights and character of the
miner locating upon the public land, for the purpose of mining,
are defined and established by the courts of California, we feel it
our duty to recognize them whenever their decisions may be

60 87 U. S. 507, 22 L. ed. 414. 06 Qillaii v. Hutchinaon, 16 GU.

61 87 U. S. 670, 22 L. ed. 452. • 153.

02 101 Oil. 42, at 55, 31 Pac. 112, 07 Bupley v. Welch, 23 CaL 452,

35 Pac. 334. without referring to the former dfl-

08 23 CaL 453. dsion, which Mr. Yale calls <<aii us-

64 23 CaL 453. worthy example" from the bench to

06 Gray t. Dixon, 74 Cal. 508, 16 the bar.
Pac 305.

S§ 11, 12 HISTOBICAL BEVIEW. 21

applicable to our condition. . . » . To repudiate the theory and
prineiples upon which they hare acted wonld be to oyertum the
foundation upon which half out rights rest. ' ' ^

C. EARLY LEGISLATION.

§ 11. Congress and the Public Domain.^ — ^At the close of the
Civil War in 1865, the East advocated what was practically a
confiscation and denial of the rights of those who had taken up
the public lands and the things thereon, and suggested some
disposition of the mines and rights on the public domain such as
would pay oflE the war debt. It was to prevent such action (and
uot of their own initiative) that the Western members of Con-
gress, led by Senator William M. Stewart, introduced a counter-
bill to confirm the rights of the miners and appropriators, so that
they should not be in danger of being denied them. This counter-
bill, after passing the Senate, was held up in the public lands
committee of the House. A separate bill, however, relating only
to ditches and water rights, passed in the House, whereupon in
the Senate the Western members attached the other bill, relating
to mines, as a rider. In this way it passed, and henxse, whUe
primarily a mining bill, is entitled, ''An act granting the right
of way to ditch and canal owners through the public lands, and
for other purposes. ' ' This also accounts for the obscure wording
in parts, the bill being forced through the possibility of much
opposition which more explicit wording would have aroused and
offended. Writing in 1867, Mr. Yale said: **It is now thought
best not to have the general subject opened again. It is far
better to perfect the system which has been established, as prac-
tical experience shall point the way, than to have any more agita-
tion over it in Congress." This accounts for the lack of further
direct national legislation upon the subject.

§ 12. Pederal Statutes of 1866 and 1870.— In 1866 and 1870
Congress enacted these statutes upon the subject. The provi-
sions of these statutes are now incorporated in Revised Statutes,
sections 2339, 2340, which are as follows :

tt Lewis, 0. J., in HaHett v. Uncle 80 The f oUowing section is con-

Sam Min. Ck>., 1 Nev. 188, 90 Am. densed from Yale on Mining Olaims
I>ec. 484. and Water Bights, p. 10.

22 THE LAW OP APPROPRIATION. S 13

Rev. Stats., sec. 2339: ** Whenever, by priority of possession,
rights to the use of water for mining, agricultural, manufactur-
ing 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
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 or damage shall be
liable to the party injured for such injury or damage." ''^

Rev. Stats., sec. 2340: *'A11 patents granted, or pre-emption or
homesteads allowed, shall be subject to any vested and accrued
water rights, or rights to ditches and reservoirs used in connection
with such water rights, as may have been acquired under or
recognized by the preceding section." ^^

§ 13. Comments on These Federal Statutes. — ^The obscurity of
the wording of these sections has been frequently pointed out. In
Nevada ''^ Lewis, C. J., speaks of Revised Statutes, section 2339,
as: **This section, which by its turbid style and grammatical
solecisms, more surely than by the enacting clause of the act, is
shown to be a production of Congress, may be found on page 253,
^'olume 14, of the Statutes at Large," and that it **is about as
clear and certain as the objects and purposes of the acts of Con-
gress usually are. It is true, the most apt words to indicate this
purpose are not employed. That could scarcely be expected,
etc." And Mr. Justice Stephen J. Field, to whom the recogni-
tion of the doctrine in the supreme court of the United States
(as well as, to a large extent, in California) is due, said that
**the language used is not happy. ""^

70 A. C. July 26, 1866, sec. 9; 14 73 Basey v. Gallagher, 87 U. S. 670,
Stats. 253, c. 262; U. S. Comp. Stats. 22 L. ed. 452. Judge Lindlej says
1901, p. 1437. (Lindley on Mines, sec. 567) as to

71 A. C. July 9, 1870, sec. 17; 16 mining, with which the act of 1866
Stkts. 218, c. 235; U. S. Comp. Stats, dealt more than with waters, ''The
1901 p 1437 truth is manifest. The act is eniae

T^Hobart V. Ford, e Nev. 77. ifrZ"^^,^'^: ^^ ^

§ 13 HISTORIOAL REVIEW. 23

The purpose of these statutes, well recognized at the time they
were passed, as shown by the outline heretofore given of their
history, is stated by Mr. Justice Field in Jennison v. Kirk : ^*

"The object of the section ^was to give the sanction of the
United States, the proprietor of the lands, to possessory rights,
which had previously rested solely upon the local customs, laws
and decisions of the courts, and to prevent such rights from be-
ing lost on a sale of the lands. The section is to be read in con-
nection with other provisions of the act of which it is a part,
and in the light of matters of public history relating to the min-
eral lands of the United States. The discovery of gold in Cali-
fornia was followed, as is well known, by an immense inunigra-
tion into the State, which increased its population within three
or four years from a few thousand to several hundred thousand.
The lands in which the precious metals were found belonged to
the United States, and were unsurveyed, and not open, by law, to
occupation and settlement. Little was known of them further
than that they were situated in the Sierra. Nevada Mountains.
Into these mountains the emigrants in vast numbers penetrated,

eccapying the ravines, gulches and canyons, and probing the

•

earth in all directions for the precious metals. Wherever they

went, they carried with them that love of order and system and

of fair dealing which are the prominent characteristics of our

I»eople. In every district they occupied, they framed certain

rules for their government, by which the extent of ground they

could severally hold for mining was designated, their possessory

right to such ground secured and enforced, and contests between

them either avoided or determined. These rules bore a marked

bimilarity, varying in the several districts only according to the

extent and character of the mines ; distinct provisions being made

for different kinds of mining, such as placer mining, quartz

mining, and mining in drifts or tunnels. They all recognized

discovery, followed by appropriation, as the foundation of the

possessor's title, and development by working as the condition

of its retention. And they were so framed as to secure to all

comers, within practicable limits, absolute equality of right and

privilege in working the mines. Nothing but such equality would

have been tolerated by the miners, who were emphatically the

^* 98 U. 8. 453, 25 L. ed. 240.

24 THE LAW Or APPROPRIATION. 9 13

lawmakers, as respects mining, apon the public lands in the
State. The first appropriator was everywhere held to have, with-
in certain well-defined limits, a better right than others to the
claims taken up; and in all controversies, except as against the
government, he was regarded as the original owner, from whom
title was to be traced. Bnt the mines conld not be worked with-
out water. Without water the gold would remain forever buried
in the earth or rock. To carry water to mining localities, when
they were not on the banks of 8 stream or lake became, there-
fore, an important and necessary business in carrying on mining.
Here, also, the first appropriator' of water to be conveyed to
such localities for mining or other beneficial purposes was recog-
nised as having, to the extent of actual use, the better right. The
doctrines of the common law respecting the rights ^of riparian
awners were not considered as applicable, or only in a very lim-
ited degree, to the conditions of miners in the mountains. The
waters of rivers and lakes were, consequently, carried great dis-
tances in ditches and fitimes, constructed with vast labor and
enormous expenditures of money, along the sides of mountains
and through canyons and ravines, to supply communities en-
gaged in mining, as well as for agriculturists and ordinary con-
sumption. Numerous regulations were adopted, or assumed to
exist, from their obvious justness, for the security of these ditches
and flumes, and for the protection of rightd to water, not only
between different appropriators, but between them and the hold-
ers of mining claims: These regulations and customs were ap-
pealed to in controversies in the State courts, and received their
sanction; and properties to the value of many millions rested
upon them. For eighteen years, from 1848 to 1866, the regula-
tions and customs of miners, as enforced and molded by the
courts and sanctioned by the legislation of the State, constitu-
ted the law governing property in mines and in water on the
public mineral lands. Until 1866, no legislation was had look-
ing to a sale of the mineral lands. The policy of the country had
previously been, as shown by the legislation of Congress, to
exempt such lands from sale. In that year, the act, the ninth
section of which we have quoted, was passed. . « . .

''The Senator of Nevada, Honorable William M. Stewart, the
author of the act, in advocating its passage in the Senate, spoke

9 13 HI8TOSIGAL REVIEW. 25

in high praise of the regulations and customs of miners^ and
portrajed in glowing language the wonderful results that had
followed the system of free mining which had prevailed with
the taeit consent of the government. The legislature of Cali-
fornia, he said, had wisely declared that the rules and regula-
tions of miners should be received in evidence in all controversies
refipeeting mining olaimS) and, when not in conflict with the con-
stitution or laws of the State or of the United States, should
govern their determination; and a series of wise judicial de-
eiaions had molded these regulations and customs into 'A com-
prehensive system of common law, embracing not only mining
law, properly speaking, but also regulating the use .of water
for mining purposes/ The miner's law, he added, was a part
of the miner's nature. He had made it, and he trusted it and
obeyed it. He had given the honest toil of his life to discover
wealth, which, when found, was protected by no higher law than
that enacted by himself, under the implied sanction of a just
and generous government. And the act proposed continued the
system of free mining, holding the mineral lands open to ex-
ploration and occupation, subject to legislation by Congress and
to local rules. It merely recognized the obligation of the gov-
ernment to respect private rights which had grown up \mder
its taoit consent and approval. It proposed no new system, but
sanctioned, regulated, and confirmed a system already established,
to which the people were attached. (Cong. Globe, Ist Sess., 39th
Cong., pt. IV, pp. 3225-3228.)"

As stated in one case: ''^ ''It was for the purpose of protecting
the rights of appropriators of water for beneficial uses on the
public lands which had vested and accrued, by virtue of local
enstoms, laws, and* decisions of the courts, that the ninth section
of the act of Congress of July 26, 1866, the substance of which
is included in section 2339 of the Bevised Statutes, was enacted.
It was apparent to Congress, and, indeed, to every one, that
neither local customs nor State laws or decisions of State courts
Mold vest the title to public land or water in private individuals
without the sanction of the owner, viz., the United States."

^5 Benton ▼. Johncox, 17 Wash. 277, 61 Am. St. Bep. 912, 49 Pac. 498.
39 L. B. A. 107.

26 THE LAW OP APPROPRIATION. S 13

It will thus be seen that the Federal statutes (now sections
2339, 2340, Revised Statutes of the United States) merely gave
a formal sanction to the rules already established. The statutes
had in view chiefly appropriations already made rather than fu-
ture ones; and the protection of existing rights against national
spoliation was the primary object. Those rights had been built
up in reliance on the tacit acquiescence of the United States, the
true owner of the lands and waters on which appropriations
were made, and these statutes acquiesced therein expressly, ''a
\oluntary recognition of a pre-existing right rather than the
establishment of a new one."^* Appropriators to-day, at least
in the States following the California system, always claim to
deraign title ultimately under these Federal statutes, from the
recognition and permission accorded by the act of 1866."

The supreme court of the United States, in Broder v. Natoma
Water Co.,''® said: **We are of the opinion that it is the estab-
lished doctrine of this court that rights of miners, who had taken
possession of mines and worked and developed them, and the
rights 0^ persons who had constructed canals and ditches to be
used in mining operations and for purposes of agricultural irriga-
tion, in the region where such artificial use of the water was
an absolute necessity, are rights which the government had, by
its conduct, recognized and encouraged and was bound to pro-
tect before the passage of the act of 1866, and that the section
of the act which we have quoted was rather a voluntary recogni-
tion of a pre-existing right of possession, constituting a valid
claim to its continued use, than the establishment of a new one."
And in Basey v. Gallagher: **It is very evident that Congress
intended, although the language used is not happy, to recognize
as valid the customary law with respect to the use of water which
had grown up among the occupants of the public land 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 court. ' The union
of the three conditions in any particular case is not essential

76 Osgood V. Water Co., 56 Gal. Pomeroj on Riparian Sights, sees. 17,

571: Lux V. Haggin, 69 CaL 255, 10 28. „ . ^^ /. ,

ry aTA tj a xr * w\ ^ ^^^ ▼• Haggin, 69 OaL 255, at

Pac. 674 ; Broder v. Natoma Water 339 jq p^^^ 674.

Co., 101 U. S. 274, 25 L. ed. 790; 78 101 U. 8. 274, 25 L. ed. 790.

514

HI8T0EICAL BEVIEW.

to the perfection of the right by priority; and in case of con-
Hiet between a local custom and a statutory regulation, the lat-
ter, as a superior authority, must necessarily control. ' ' ''^

While the construction of these statutes will be matter for con-
sideration again, iour object here is to set forth the idea for which
they were passed, and for which the supreme court of the United
States accepted them when originally brought before it ; namely,
to recognize the right to appropriate a stream which flowed over
the unoccupied public domain, according to the customs of Cali-
fornia miners and the decisions of the California cour|;.^

§ 14. State Legislation: — Shortly after these Federal laws
went into effect, California adopted its codes (1872). In the
Civil Code, thirteen sections ®* were devoted to this subject — a
perfectly yalid field for State legislation so long as not conflict-
ing with the Federal statutes and within the constitutional lim-
itations upon the legislative power of a State.^ It is a part of
the police power.®^ No substantial innovations were made and
the California code merely settles, in legislative form, the de-
cisions of the courts already made; a crystallization of the law
of appropriation. No new rules were incorporated except in
minor details that will be hereafter noted.^

In one or two instances the principle of priority of appropria-
tion of waters passed into legislative enactment as a statement
of the decisions before the adoption of the California codes. • In
Wyoming the territorial legislature in 1869 passed a law, de-
claratory of the California decisions, for the development of the
mining resources of the territory, and provided in that act for
placing and recording notices of claims for ditches and water
privileges; and requiring the completion of such ditches within
a certain time after filing notice.^ After the enactment of the

w Baaey v. Gallagher, 87 U. 8. 670,
22 L. ed. 452.

80 They intended no new, other or
Afferent rights than sneh as existed
ot the time of their adoption, says
Woolverton, J., in United States v.
Conrad Inv. Co., 156 Fed. 126.

81 Seetions 1410-1422.

» Lux V. Haggin, 69 Cal. 255, 10
Pw. 674; Qutierres v. Albuqnerque
etf. Co., 188 U. 8. 545, 47 L. ed. 588,
-3 Sup. Ct. Rep. 338.

83 White V. Farmers' etc. Co., 22
Colo. 191, 43 Pac. 1028, 31 L. R. A.
828.

84 Pomeroy on Riparian Rights, 89 ;
Blanchard and. Weeks on Mining
Claims and Water Rights, 696. See
infrCf c. VII.

85 Laws 1869, pp. 310, 311, c. 22,
sees. 15-17 ; Willey v. Decker, 11 Wyo.
496, 100 Am. St. Rep. 939, 73 Pac.
210.

2ft THE LAW OF APPttOPBIATlON. § 15

California Ciyil Code, statutes were passed in other States gen-
erally eopying its provisions upon appropriation of water.^ The
first legislation was generally modeled upon the California law
as represented by the decisions of the California court and form-
ulated in-tlie Civil Code. In Nebraska, the rule was not en-
forced until recently .'^

Since the enactment of the California Civil Code there has been
practically no legislation in California, though Professor Pome-
roy wrote his work on Riparian Bights to urge it. The State
legislation .in California since then has been chiefly devoted to
irrigation districts, leaving the law of waters in general un-
touched. But more recently there has been extensive legislation
in the arid States.^

D. THE CONFLICT OVER BIPABtAN BIGHtS.

§ 16. Private Title to Land and New Industries. — ^As has been
seen, though water was appropriated for all sorts of uses from
the start, yet mining was the paramount industry in California
and use for mining predominated. But in the seventies and early
eighties, conditions in California changed. The public lands
were being rapidly taken up and bought by private persons, un-
der Federal statutes, and the fee passed out of the United States
to a large extent. Small farms and large ranches, orchards,
towns, sprang up on what had before been vacant land. Cali-
fornia grew into a settled agricultural and commercial community
resembling more and more the older States; and the pioneer con-
ditions that had forced a departure from the common law were
passing into the background as mining cetised to be the para-
mount industry. The rights of the landowner through whose
land, now private, a stream flowed, never before used by any-
one, became an imporant question. The premise in Irwin v.
Phillips, the original precedent, that the lands and waters in con-
troversy were a part of the public domain, to which no one claimed
private proprietorship, was no longer true.

M Infra, sec. 105. tion is very yoon^ in tluB State, u

87 Meng Y. Coffey, 67 Neb. 500, the semi-arid portiona did not begin

108 Am. St. Bep. 697, 93 N. W. 715, to be settled till about ISSO."
60 L. B. A. 910, saying: "Irriga- 88 /nfra, sec. 25.

§ 16

HI8T0BICAL BEVIBW.

§ IB. The Law an4 InrigatioiLr^The chief industry demand-
ing water under these new conditions- was irrigation. A well-
known writer^ declared that California largely owes her prom-
inenee to-day to irrigation, and that irrigation has reached its
greatest developmisnt in that State. That in irrigation lies the
future of the West, there can be no doubt. We may, then, di-
gress a little, to set forth the great conflict of opinion as to
whether the conunon law of riparian rights or the doctrine of ap-
propriation is more favorable to development of the West, or
whether either is inimical thereto.

In many of the Western States ^ feeling runs high against any
attempt to enforce the comnion-law rules of riparian rights, and
it 19 said that appropriation is absolutely essential. In Idaho,®^
the court rose against the "phantom of riparian rights," and de-
clared appropriation the ''lineal descendant of the law of ne-
cessity." In Utah,^ speaking of riparian rights, it is declared:
"It was ascertained that either that doctrine must be modified
or that this country must remain a barren waste." In a Nevada
ease it is said: ''Here the soil is arid and unfit for cultivation
unless irrigated by the waters of running streams. The general
surface of the State is table-lands, traversed by parallel mountain
ranges. The great plains of the State afford natural advantages
for 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 land to resort to the diversion and use of the waters.
This fact of itself is a striking illustration and conclusive evi-
dence of the inapplicability of the common-law rule."*^ The
8ame court recently also said: "Irrigation is the life of our im-
portant and increasing agricultural interests, which would be
strangled by enforcement of the riparian principle."^

^ Kinney on Irrigation, see. 339.

M A list of wluoh is given below,
Ke. 23.

» Drake y. Earhart, 2 Idaho (756),
716, 23 Pac. 541.

« Salt Lake Citj t. Salt Lake etc.
Co., 25 Utah, 456, 71 Pac. 1069.

** Bene Smelting "Works v. Steven-
mi, 20 Nev. 269, 19 Am. St. Rep.
364, 21 Pac. 317, 4 L. B. A. 60.

w Twaddle v. Winters (Nev.), 85
^t. 2S4. In this case the court at-

tacks the California law for uphold-
ing riparian rights, with a misunder-
standing that is frequent. In Kn^wfmi
V. Colorado, 206 U. S. 46, 51 L. ed.
956, Theodore A. Bell, member of
Congress from California; J. C.
Needham, member of Congress from
California; Henry C. Hansbrough,
United States Senator from North
Dakota; Alexander Oswald Brodie,
former governor of Arizona; Francis
E. Warren, United States Senator

30* THE LAW OF APPBOPBIATION. I 16

The expressions of these eourts (the courts of the arid States)
are really devoted to a praise of irrigation, in which everyone
will join without a dissent. Their inconclusiveness is in con-
sidering that to be conclusive proof of the inapplicability of the
common law, which a glance at the orchards of California (where
the common law is now more widely applied than appropriation'
shows to be incorrect. Assuming that irrigation is synonymous
with appropriation alone, certain phrases will be found running
through the opinions opposed to riparian rights, most of which
i»ppear in the opinion of Mr. Justice Brewer in Kansas v.
Colorado,®*^ such as: Barrenness disappears; desert becomes gar-
den ; blossoming like the rose.®**

In the rest of the Western States,®^ opinion is equally strong
that the doctrine of riparian rights is a beneficial one when the
two systems are enforced together, and that the law of appro-
priation alone is a system to be viewed with alarm. In Cali-
fornia,^ the court says that it would not require a prophetic
vision to see that the law of appropriation alone would result
in a monopoly of the waters of the State by a few individuals.
In Montana,^ the chief justice said that the common law of
riparian rights is best adapted to irrigation, saying: ** Water
for irrigation in this country as naturally belongs to the lands
through which the stream passes, in certain proportions, as in
other countries it belongs to the land to supply the necessities
of life." And he further says: **Is it not the true policy of

this Territory to erect such a system of laws here as shall dis-
tribute our short supply of water to the best advantage to all
our people! The common law applied to this country is ample
and suflScient to secure this much desired end'*; and after set-
ting forth objections to the doctrine of appropriation, closes his
opinion: **And all these consequences, so disastrous in any view,
are to be visited upon Montana, that a few individuals may have

from Wyoming; Joseph M. Carey, below, which reject the doctrine of

formerly U. S. Senator from Wyom- riparian rights in toto. See, further,

ing, and many engineers testified to the quotations in Willey ▼. Decker,

their opinion of the ruinous effect of 11 Wyo. 496, 100 Am. St Bep. 9Z9j

the common law on irrigation. Bead- 73 Pac. 210, giTen infra, sec. 35.

ing their testimony one who had never 97 See list, sec. 22, below,

visited California would think the OS Lux v. Haggin, 69 GaL 255, at

State must be a limitless, silent, de- 309, 10 Pac. 674, quoted infra, see.

serted v^&ste 342

85 206 U. S. 46, 51 L. ed. 956. w Thorp v. Freed, 1 Mont. 651,

96 Quotations to this effect could be Wade, C. J.
repeated from all the States given

5 16 HISTORICAL REVIEW. 31

what does not now and never did, belong to them."^^ In Ne-
braska,^^* the court arraigns the unrestricted law of appropria-
tion, and says it breeds monopolies; leads to antagonism, strife,
dissension, gross exactions, abuses; is detrimental to the public
welfare; has given rise to interminable litigation. Professor
Pomeroy said: '*The doctrine of prior appropriation is completely
at war with a system which recognizes, harmonizes, and protects
the rights of aU parties in the state. ''^^*»

These statements so far quoted are in the nature of a cross-
eomplaint, or recrimination, so to speak. By way of reply to
the assertion that the common law is inapplicable to conditions
where irrigation is necessary, it is said in Nebraska: 102 «<^ great
deal of what has been urged upon us as demonstrating the in-
applicability of the rules of the common law upon this head to
conditions in Nebraska proceeds upon an erroneous impression
of the nature and purpose of such rules. Nor do we believe that
the conunon-law rule of equality among riparian owners, ad-
ministered liberally with respect to the circumstances of par-
ticular localities, is necessarily prohibitive of irrigation any-
where. K we bear jn mind wherein the essential doctrine of the
common law on this subject consists, we doubt whether a more
equitable starting point for a system of irrigation law may be
found." And in another case,^^ the same court says: **But it
cannot be said that common-law rule of riparian ownership is in-
consistent with the use of water for irrigation purposes, for, as
we shall see later on, the right to the use of water for irrigation
purposes is one of the elements of property belonging to the
riparian owner along with that of its use for domestic and water
iwwer purposes." And in Washington:*^ "Now, the common-
law doctrine declaratory of riparian rights, as now generally un-
derstood by the courts, is not, in our judgment, inconsistent with
the constitution or laws of the United States or of this State.
Nor is it incompatible with the condition of society in this State,

■

i« He desired to refuse to aUow 102 Meng v. Coffey, 67 Neb. 500,

the law of appropriation any recogni- 101 Am. St. Rep. 697, 93 N. W. 715,

ti«n whatever for irrigation; that ia, 60 L. R. A. 910.

to apply the common law alone and 103 Crawford v. Hathaway, 67

wjeet the doctrine of appropriation Neb. 325, 108 Am. St. Eep. 647,

»« ioto as eoneema irrigation. 93 N. W. 781, 60 L. R. A. 889.

wi ParmeTB ' Irr. Dist. v. Prank, 104 Benton v. Johncox, 17 Wash.

«2 Neb. 136, 100 N. W. 286. 277, 61 Am. St. Rep. 912, 49 Pac.

iWft Pomeroy on Riparian Rights, 498, 39 L. R. A. 107.
>ee. 160.

THE LAW OF APPBOPBIATION.

I 17

unless it can be said that the right of an individual to use and
enjoy his own property is incompatible with our eondition-Hi
proposition to which, we apprehend, no one would assent for a
moment."

In Texas there is a different rule for different parts of the
State,*^ but in California the court said:^*^ "It is said, it
should be held that the streams in the more arid portions of
California may be entirely diverted by the prior appropria-
tor, as against those below, and that the common-law rights
of riparian proprietors should prevail in the regions in
which the climate more nearly resembles that of other states
where the common-law rule is. enforced. The aridity of the soil
and air being made the test, the greater the aridity the greater
the injury done to the riparian proprietors below by the entire
diversion of the stream, and the greater the need of the riparian
proprietor, the stronger the reason for depriving him of the
water. It would hardly be a satisfactory reason for depriving
riparian lands of all benefit from the flow that they would there-
by become utterly unfit for cultivation or pasturage, while much
of the water diverted must necessarily b^ dissipated. No pre-
cise line of separation between the regions so characterized is
pointed out, and the attempted classification is itself somewhat
uncertain and indefinite. It would seem there could be no doubt
that the law, derived from the same sources, is the same every-
where in California Whatever is the general law bearing

on the subject, it is the same everywhere within the limits of
the state. " i<>T

§ 17. Same. — ^The first thing that strikes attention in this con-
flict of opinion is thus expressed by the Nebraska court: ^^ **In
all States which, like our own, are but partially arid, the com-
mon law is in force. The States holding tp the contrary rule
are wholly within the arid regions." The relative merits of the
two systems would appear to depend on the relative scarcity of
water where the systems are to be applied.

The reason for the difference may lie somewhat deeper. Cali-
lornia, where the common law is successfully in force, as well as

105 Infra, sec. 22. Eep. 697, 93 N. W. 715, 60 L. R.

106 Lux V. Haggin, 69 Cal. 255, 10 A. 910.

Pac. 674. 108 Meng v. Coffey, 67 Neb. 500,

107 To the same effect, Meng v. 108 Am. St. Rep. 697, 93 N. W.
Coffey, 67 Neb. 500, 108 Am. St. 713, 60 L. B. A. 910.

\ 17

mSTOBIGAL BEVIBW.

Dppropriation, is as arid in some parts as are anj of the other
States.^^ In one ease,^^^ speaking of certain California land, it
was said: ''The water was so scarce that the land was liable to
dry up and blow away." Aridity is, however, outside of Cali-
toroia, a charaeteristie of the pioneer regions to-day; or rather,
because entirely arid, certain of the interior States are sparsely
settled and not largely developed. Beyond the matter of aridity
is the more fundamental consideration that the law of appro-
priation is a pioneer doctrine, one to fit the necessities of sparsely
settled and rough regions of any kind. Where courts are fifty
to a hundred miles across a desert, taking days of teaming over
trying roads or even trails to reach them; where the difficulty
of enforcing the law is great; where the rule of first come first
served is nine points of the law anyway, for defense equally as
much as offense, though the tenth point may be insisted upon hy
some distant court ; because that rule is certain, easily understood,
End, in a new region, just — in such regions the more finely ad-
justed system of riparian rights must give way to a rougher
system. On the other hand, in regions more closely settled, where
the small holdings of land under private title are more numer-
ous, and the water is needed for many but smaller tracts of
land and the important enterprises are not merely a few on a
large scale ; where the machinery of the law runs more smoothly —
in such regions the G^stem of appropriation alone is inadequate,
because based on too selfish a. principle. For the more settled
regions, even if arid, the California doctrine of combination of
the two systems covers the defects of either alone, especially since
it is self-adjusting, riparian rights coming in only in propor-
tion to the "settlement of the land, and not disturbing the previ-
ous appropriations that aided in bringing about that settlement.
The history we have been tracing of the doctrine shows that
the pioneer conditions in California were the fundamental thing

i» The portion of the public do-
nam lying bietween the ninety-ninth
meridian of longitude weflt from
Greenwich and the Pacific Ocean is
trid, and generally incapable of culti-
vation except by means of irrigation;
that region embmcee more than one-
third of the geographical area of
the United States, and comprises the
territories of New Mexico, Arizona,

Water Rights — 8

Colorado, Wyoming, Utah, Idaho, and
Montana and the State of Nevada
and large portions of the States .of
Oregon, California, Nebraska, Kansas^
and Texas and of the Territories of
Washington and Dakota, Willey v.
Decker, 11 Wyo. 496, 100 Am. St.
Rep. 939, 73 Pac. 210.

no Hewitt v. Story, 64 Pttd. 510,
12 C. C. A. 250, 30 L. B. A. 265.

THE LAW OP APPROPRIATION.

5 17

m giving rise lo the whole doctrine of appropriation. In early
. California we saw that it was urged that it was peculiarly a
mining doctrine, not to be applied to agriculture, and the court
had much di£Sculty before it was accepted as a doctrine of gen-
eral application and outlook. To-day, in the interior, the pendu-
lum is swinging the other way; it is called peculiarly an irriga>
tion doctrine. Neither in history nor results does this seem
justified. It is neither an irrigation nor a mining doctrine;
it is one admirably adapted to all pursuits so long as applied in a
new region, but may with advantage be supplemented by the
common law of riparian rights as the regions become more set-
tled and developed.***

Tested by results, the following quotation**^ concerning the
results in the leading State upholding riparian rights as weU as
appropriation is significant:

''The State of California, constituting a large and important
part of the field where the art of irrigation is practiced, is also
the great model for the rest of the region regarding the prac-
tical development of its water supply, and in the use of wat«r
as applied to the purpose of irrigation. 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. It is
safe to say that California owes the larger portion of the prom-
inence which it occupies to-day to the results of irrigation."

Ill See Clark y. AUaman, 71 Kan.
206, 80 Pac. 571, 70 L. B. A. 971.

In Pomeroy on Riparian Bights,
page 264, the Colorado lavra are criti-
cised. The reader, of coarse, will
understand that we give this passage
but in a conscientious wish to place
before the reader what has beep said
on the subject, and as the comment
of an eminent author; not as our
own. Professor Pomeroy said: "As
Colorado tod these Territories become
more fully settled, especially by an
agricultural population, this s^tem
of water reguUition will inevitably
give rise to an enormous amount of
trouble, controversy, and litigation.
It is impossible to conceive of legis-

lation tending more than this to cre-
ate strifes, conflicts, and breadMs of
the peace. The right of prior ap-
propriation on the public streams was
a most fruitful cause of* litigation
in California, as is shown by the
great number of reported cases; bat
this is a feeble illustration of the liti-
gation and controversy which most
arise from the statutes of Colorado
and of the various Territories when
they come into full operation upon an
increasing population."

112 From Kinney on Irrigation, sefi.
339 (Mr. Kinney is a member of the
Salt Lake Bar. The quotation is
condensed from the whole section).

5 18

HISTOEICAL EEVIEW.

The common law of riparian rights is not regarded as hostile
to irrigation where the combined system prevails, under what ^^^
is called the California doctrine, the origin of which it is now our
object to describe.

§ 18. Biparian Bights Before Lux v. Haggin. — Soon after the
doctrine of approx>riation was established, the California court
held, in Crandall v. Woods, that the new rule was by no means
exclusive of riparian rights, and that those rights attached to the
land through which a stream flowed, in favor of settlers thereon,
as against all but appropriations actually made prior to settle-
ment thereon.*^* The opinion was, however, given by Chief Jus-
tide Murray at a time when he was attempting to shape the doc-
Irine of appropriation as a mere modification of the common law
of riparian rights, and not to recognize it as an entirely inde-
pendent system. Moreover, in most of the cases arising there-
after wherein a party was a riparian proprietor, the result would
have been the same on the principles of appropriation.^^^ Before
Lax V. Haggin it had become the prevalent impression that there
had been a rejection in toto in California of the common law
of riparian rights.^^® Beside the clear decision in Crandall v.
Woods, however, there had been continual dicta that riparian
rights might vest by prior occupation of Und through which a
i»tream flowed, and be good against later appropriators of the
water — 6. g., Irwin v. Phillips ^^'^ (the original precedent), saying:
''If it is upon a stream the waters of which have not been taken
from their bed, they cannot be taken to his [meaning the land-
owner's] prejudice"; and Conger v. Weaver,^^® saying: **We
liave recognized the right to appropriate the water where no
riparian rights intervene"; and Kelley v. Natoma Water Co.,"^

iw In waiey v. Deeker, 11 Wyo.
4M, 100 Am. 8t. Bep. 939, 73 Pae.

210. ^

iM CrandaU t. Woods, 8 CW. 136,
i>ffiTmQd in the same Tolame in Leigh
V. Independent Ditch Co., 8 CaL 328.

^^ S. g., FerrcB v. Knipe, 28 CaL
JiO, 87 Am. Dec. 128. "This is the
nnt ease in these repotts after that
of Crandall v. Wood, 8 CaL 136,
wHere the eontroyersy concendng wa-
ter rights was between two farmers,

or -parties engaged in ranching, the

?laintiff claiming under a settler."
ale on Mining and Water Bights,
199. The learned author further re-
marks that the result in that ease
would be the same under either rule.

110 See dissenting opinions in Lux
y. Haggin; see Pomeroj on Biparian
Bight^ sec. 108.

in 5 CaL 140.

iiB 6 CaL 548, 65 Am. Dec. 528.

119 6 CaL 108.

3(5

THE LAW OF APPROPBIATION.

S 18

saying: ''Possession or actual appropriation must be the test of
priority in all claims to the use of water, whenever such claims
are not dependent upon the ownership of the land through which
the water flows. ' ' ^^ It was said by Chief Justice Murray in
Crandall v. Woods in 1857: *'If the rule laid down in Irwin v.
Phillips is correct as to the location of mining claims and wat^r
ditches for mining purposes, and priority is to determine the
rights of the respective parties, it is diflScult to see why the rule
should not apply to all other cases where land or water had been

appropriated Suppose he had located a farm, and the

water passing through his land was necessary for the purposes of
irrigation, is not this purpose just as legitimate as using the wa-
ter for mining ? It may or may not be equally as profitable, but
irrigation for agricultural purposes is sometimes necessary to
supply natural wants, while gold is not a natural, but an artifi-
cial, want, or a mere stimulant to trade and commerce. If it is
understood that the location of land carries with it all the inci-
dents belonging to the soil, those who "construct water ditches
will do so with reference to the apropriations of the public do-
main that have been previously made, and the rights that have been
already acquired, with a full knowledge of their own rights as
against subsequent locators." Crandall y. Woods very distinctly
decides that as between an occupant of riparian land and a sub-
sequent appropriator of the waters of the stream the former may
assert the riparian right, and was so decided with the very view
of protecting irrigation in the future, though leaving open in the
case whether irrigation be proper. This is the first Western case
dealing with irrigation at all, and it upheld the riparian right.

Concerning Crandall v. Woods, Mr. Yale said:^^* **The dis-
tinguishing points in the case, from that of Irwin v. Phillips,
which it affirms, aside from the application of common-law rules,
is simply in somewhat modifying its features, conferring upon
locators on public land the rights of riparian ownership, as fully
as if they had the title, which that case emphatically denied be-
cause the fee was in the government." That, however, is about

120 And Wixon v. Bear River Co.,
24 Cal. 367, 85 Am. Dec. 69; Ferrea
V. Knipe, 28 Cal. 340, 87 Am. Dec.
128, and other cases. See cases cited
in Lux V. Haggin, 69 Cal. 255, 10

Pac. 674; Pomeroy on Bipari&n
Bights, 8«k:. 1Q9.

121 Yale OB Mining Claims and Wa-
ter Bights, 175.

8 19

qiSTOBICAL BEVIEW.

the oJily passage in Mr. Yale's book upon the question of Ihe
existence of riparian rights in California, showing how unim-
{»ortant practically the question was in the sixties, when Mr
Yale wroti*.^^^

Outside of California, the Nevada court had rendered the de
cision in Van Sickle v. Haines,^^ going so far even as to hold that
the passing of public land into private hands actually destroyed
even prior appropriations existing at the time (not now the law
anywhere), and even this extreme position was approved by the
Cuief Justice of Montana,^^ and was followed in Nevada Federal
eourts.^^ These Nevada State and Federal decisions have all
since been overruled,^^ but at the time of Lux v. Haggin were
in good standing.^^

§ 19. Same. — ^Previous to Lux v. Haggin, the supreme court
of the United States, as already shown, had regarded the rule of
appropriation as one of priority to public lands. They had pro-
tected the appropriator against later settlers on the banks of the
stream. That was all that bad yet come before them. They held
that the Federal statutes so afiSrmed in order to prevent the
prior appropriator losing his right on a settlement of the land,
and had expressly left open the question whether a prior settler
could a^rt his riparian right against later appropriators. In

122 Some other California eaaes are
quoted in Lux t. Haggin, reeogniz-
ing the riparian right of the prior
Bettler, among others, Ferrea v.
Kiupe, 28 CaL 340, 87 Am. Dee. 128;
Pope V. Kinman, 54 Gal. 3; Zimmler
V. San Luis etc. Co., 57 Cal. 221;
Anaheim ete. Co. t. Semi-Tropic
Co., 64 Cal. 185, 30 Pac. 623; Creigh-
ton V. EYans, 53 Cal. 55; bnt says
tbat in some of the cases ' ' where the
riparian owner claimed in his plead-
ing and relied at the trial on an
utaal prior appropriation of water,
the court coniiiied its inquiry to the
«]3stence or non-existence of the
facts alleged," citing for example
McDonald v. B. B. Oo., 13 Cal. 220.

^^ 7 Ney. 249.

«* Thorp' V. Freed, 1 Mont. 687.

i» Union Min. Co. v. Penris, 2
8»w. 176, Fed. Cas- No. 14,371, and
Same v. Dangberg, 2 Saw. 450, Fed.

Cas. No. 14,370, both concerning rights
in Nevada.

126 These older Federal decrees
were again before court in 81 Fed.
73, after the State court had repudi-
ated the common law. Judge Haw-
ley held them binding as res adjudi-
cata, but concluded that on the facts,
the result would be the same under
either the common law or appropria-
tion.

127 In Van Sickle v. Haines, Judge
John B. Garber, then on the su-
preme bench in Nevada, said against
the appropriator: ''On every point
essential to the case of the peti-
tioner, not merely the weight of au-
thority, but all the authorities, are
against him. ' ' Fifteen years later he
led the other side in favor of the
appropriator ■ as leading counsel in
Lux V. Haggin.

THE LAW OF APPBOPBIATION.

§ 20

Basey v. Gallagher ^^ it was said: "Neither party has any title
from the United States. No question as to the right of riparian
proprietors can therefore arise. It will be time enough to consider
those rights when either party has obtained the patent from the
government."

The California Civil Code, in its provisions covering the law
of appropriation, had ended with a provision in section 1422:
**The rights of riparian proprietors are not affected by the pro-
visions of this title." That not more was said is because, as we
have seen, the rights of prior settlers had not been much in-
volved in the litigation of which the code was merely declara-
tory. ,

In Colorado there had at the time of Lux v. Haggin been de-
cisions to the contrary, which, for convenience, we consider in a
later section.**

§ 20. Lux v. Haggin. — ^A case arose out of the use of the Kern
river for irrigation — ^the case of Lux v. Haggin,**® decided in 1886.
The defendant, J. B. Haggin, having organized an irrigation
company, claimed the right to divert the waters of the Kern river
by an appropriation to that effect, denying that any vested rights
which, under the ,rule of riparian rights, would have prevented
this, could be recognized in California. It is probably the most
extended opinion in the California reports, covering, as it does,
two hundred pages. The previous cases had almost all arisen
out of mining, but here was one in the San Joaquin Valley, and
it showed how the law must consider water rights of immense
value, though where mining was in no way concerned. The court
said, emphatically: **The doctrine of appropriation so called is
not the doctrine of the common law."^*^ But while a rule in-
dependent of the common law, it is not destructive of the rule of
riparian rights, the court held. Those rights attach to all land
as soon as it becomes private, remaining subject to appropriations
made prior to that time, but free from all hostile appropriations
thereafter made. Citing Crandall v. Woods,^*^ the court de-

128 20 WaU. 670, 22 L. ed. 452.
X29 Oaa 23

lao 69 Cal! 255, 10 Pac. 674, a
former opinion to the same effect, not
officially reported, being withdrawn

on rehearing, is given in 4 Pac. 919<
The case arose in 1878, and was
hence in court for eight 3rear8.

181 Pages 387-399.

132 Supra.

§21

HISTOEICAL BBVIEW.

clared this always to have been the law in California. Section
1422 of the Civil Code was held to be merely declaratory of
this.^® Riparian rights woidd further be protected on constitu-
tional principles; to deny them would be taking the landowner's
property without due process of law, and an imwarranted in-
terference by the State with the primary disposal of the Federal
lands.*** The contentions that the section of the Civil Code *^ pro-
viding that ''The rights of riparian proprietors are not affected
by the provisions of this title," merely referred to riparian rights
attaching to Mexican grants, which had never been public land,
or else to riparian rights existing at the date of the enactment of
the Civil Code, the Civil Code having no prospective operation,
were rejected. The system of riparian rights was declared to be
in effect in California in full force, subject only to prior appro-
priations made before the land became private. The court de-
elded against Haggin. That riparian rights were not done away
with by the law of appropriation had all along been the conten-
tion of text-writers.*^

§ 21. BesTilt of Lux v. Haggin.— Riparian rights are now
firmly established in California side by side with the law of ap-
propriation. In theory, the two systems are of equal importance,
and receive equal consideration from the court ; but practically,
since the larger part of the lands in California have now passed
into private hands, the common law of riparian rights has a wider
application.

In 1887, the year following the decision in Lux v. Haggin, sec-
tion 1422 of the Civil Code, protecting the rights of riparian pro-
prietors, was repealed ;^^ but as Lux v. Haggin was decided

;w»Pagw 368, 375, 380. "It Ib
diffiealt to believe that the seetion,
•0 far as it appties to riparian lands
Bot those of the State, is othf r than
dedaratary of the pTe-existinff law.
It certainly was intended to be de-
ehoatoiy in s6 far as it annonnees
the pzoteetion of aU private persons
who had acquired riparian rights
from any source before the provi-
none of the code went into opera-
tion, smce (if the common-law right
^xisted) such persons were protected
mdepeadent of the section. '^ Lux v.
Haggin.

184 '<Neithet a grantee of the
United States, nor the grantee of a
private person, who was a riparian
owner when the code was adopted,
need rely for protection on section
1422. Such persons are protected by
constitutional principles." Lux v.
Haggin.

130 Sec. 1422.

isa Pomeroy on Bipaiian Bights,
chapters III, VII; Blanchard and
Weeks on Mining Claims and Water
Bights, p. 696; Yale on Mining
Claims and Water Bights, p. 175.

137 Cal. Stats. 1887, p. 144.

THE LAW OP APPBOPBIATION.

§ 2-2

largely independent of that section, the law in California remains
undisturbed by this repeal.^^ Many eases since then have af-
firmed Lux V. Haggin.^^ Recent cases in California show a de-
cided tendency to cease citing the older cases on appropriation,
assuming the doctrines there laid down as established, and familiar
law. This indicates that in California the law of appropriation
has taken its place as a complete system, past the formative period
in which the system may be said still to remain in the younger
States.

§ 22. Biimriaii Righto Upbeld in Eleven States and
tcoriea. — The combined system of appropriation and riparian rights
existing side by side, which, like the law of appropriation, was
first firmly established in California, and has been called the
'* California doctrine, "^^ is in force in the following jurisdic-
tions:^*^ Alaska (possibly), California, Kansas, Montana (prob-

138 '*The repeal of a statute will
not destroy vested rights [to water]."
Knowles, J., in Thorp y. Freed, 1
Mont. 657.

139 Infra, sec. 22. Testimony^ of
Congressman J. C. Needham, in Kan-
sas V. Colorado, 206 U. 8. 40: *'I
have been out of practice for six
years, and cannot now name ta^y de-
cision of the supreme court of the
State of CaUfomia which intimated
that the court regretted the decision
in Lux V. Haggin, but I could find
it." It will be hard for him to find
what does not exist. He elsewhere re-
fers to Katz V. Walkinshaw, 141 Cal.
116, as the decision in question, but
such reference by him is without war-
rant.

140 Willey V. Decker, 11 Wyo. 496,
100 Am. St Bep. 989, 73 Pac.
210,

141 Alaska, — Ketchikan etc Go. v.
atizens' ete. Co., 2 Alaska, 120, aem-
ble. In the Federal court, see ooniraf
Thomdyke v. Alaska Perseverance M.

Co., — — Fed. , now on appeal

in the Circuit Court of Appeals as
this book is written.

California. — Lux v. Haggin, 69
Cal. 255, 10 Pac. 674. ^^ also,
Crandall v. Woods, 8 Oal. 136; Lux
V. Haggin (Oal.), 4 Pac. 919; Van
Bibber v. Hilton, 84 Cal. 585, 24 Pac.

308; Alta Land Co. v. Hancock, 85
Cal. 219, 20 Am. St. Bep. 217, 24 Pac
645; Modoc etc. Co. v. Booth, 102
CaL 151, 36 Pac. 43l; McGuire v.
Brown, 16€ Cal. 660, 39 Pac 1060,
30 L. R. A. 384; Hargrave v. Cook,
108 Cal. 72, 41 Pac. 18, 30 L. B. A.
390 ; San Luis Water Co. y, Sstzada,
117 Cal. 168, 48 Pac. 1075; Baxter
V. Gilbert, 125 Cal. 580, 58 Pac. 129;
Batheate v. Irvine, 126 CaL 135, 77
Am. St. Bep. 158. 58 Pac. 442; Bice v.
Meiners, 136 Cal. 292, 68 Pac. 817;
Anaheim Water Co. v. Puller, 150 Cal.
327, 88 Pac. 978 ; Duckworth v. Wat-
sonviHe Water Co., 150 Cal 520, 89
Pac. 338; Miller & Lux v. Madem etc.
Co. (Cal. Sup.), Oct. 2, 1907 (now
on rehearing) ; Huffner v. Sawday
(Cal. Sup.), 94 Pac. 424; Bickey U
& C. Oo. V. Glader (Oal. Sup., Feb.
29, 1908), 94 Pac 768. In the Ted
era! courts, Calif. P. & A. Co. v. En-
terprise. Co., 127 Fed. 741 ; Anderson
v. Bassman, 140 Fed. 14. *

Kansas.-^C^Tk v. AUamaii^ 71 Kan.
206, 80 Pac 571, 70 L. B. A. 97L
See, also, Mo. Fac By. Co. v. l^eya,
55 Kan. 205, 49 Am. St B^ 249,
40 Pac. 275 ; Parker v. Ci^ of Atche-
son, 58 Kan. 29, 48 Pac 631; Mon-
tague v. Bd. Co.. Com., 7 Kan. App.
160, 53 Pac 145; Campbell v. Grimea,
62 Kan. 503, 64 Pac. 62. In the

( 23

HISTORICAL BEVIEW.

aUy), Nebraska, North Dakota, Oklahoma (possibly), Oregon,
South Dakota, Texas, Washington, and has been applied in the
supreme court of the United 8tates.

Federal eoorts, Kansas .v. Colorado,
206 U. 8. 46, 51 L. ed. 956.

Montana. — Smith v. Beimiff, 24
Mont. 20, 81 Am. St. Bep. 408, 60
Pfte. 398, 50 h. B. A. 741, oyervuling
Smith V. Denniff, 23 Mont. 65, 57
Pac. 557, 50 L. B. A. 737. Though
there is zoom for doabt as to the effeet
of this deeision. See, also, Thorp v.
Freed, 1 Mont. 651. In the Federal
courts, Cruae ▼. MeCauley, 96 ITed.
369, HoweU v. Johnson, 89 Fed. 556,
and cf. Willey v. Decker, 11 Wyo.
i96, 100 Am. St. Bep. 939, Y3 Pae.
210, so construing Smith v. Denniff.
Whether riparian rights exist in Mon-
tana was reeently expressly left open
in Winters v. United States (C. C.
A.), 143 Fed. 740, 28 U. S. Sup.
Ct. Bep. 208, and Morris y. Bean,

146 Fed. 423.
Jlefrnuta.— Cmwford etc Co. v.

Hathaway, 60 Neb. 754, 67 Neb.

325, 108 Am. St. Bep. 647, 60 L. B.

A 889, 84 N. W. 271, 93 N. W. 781.

See, also, Clark v. Cambridge & A.

In. Co., 45 Neb. 798, 64 N. W. 239 ;

Eidemiller Ice Co. ▼. Guthrie, 42 Neb.

238, 60 N. W. 717, 28 L. B. A. 581 ;

aiatteTv V. Harley, 58 Neb. 575, 79

N. W. 151 ; Plattsmouth Water Co. v.

Smith, 57 Neb. 579, 78 N. W. 275;

li«Bg T. Coffey, 67 Neb. 500, 108 Am.

St. Bep. 697, 93 N. W. 713, 60 L. B.

A. 910; Dunn et al. v. Thomas, 69

Neb. 683, 96 N. W. 142 ; McCook I. &

W. P. Co. V. Crews (Neb.), 102 N.

W. 249; Gill ▼. Lydick, 40 Neb.

508, 59 N. W. 104; Barton v. Union

OatUe Co., 28 Neb. 350, 26 Am. St.

Bep. 340, 44 N. W. 454, 7 L. B. A.

457; CKne v. Stock (Neb.), 102 N.

W. 265. The doctrine of riparian

ngbta is the sole doetrine in the East-
ern part of the State.
N^h Dakota, — ^Bigelow v. Draper,

ft N. Dak. 152, 69 N. W. 570. In

the Fedeml courts, Sturr t. Beck, 133

IT. 8. 541, 33 L. ed. 761, 10 Sup.

Ot Bep. 350.
OiJotowa.— Markwardt v. City of

Qnthxie (Okla.), 90 Pac 26, sembU,
0r«pim.~Car8on v. Gentner, 83 Or.

518, 52 Pac. 506, 43 L. B. A. 130.

Bee, also. Ore. Iron Co. v. Trullenger,

3 Or. 1; Taylor v. Welch, 6 Or. 198;
Coffman v. Bobbins, 8 Or. 278; Hay-
den V. Lone, 8 Or. 244; Shively y.
Hume et al., 10 Or. 76; Shook y.
Cok>han, 12 Or. 239, 6 Pao. 503;
Weiss V. Or. Iron & S. Co., 13 Or.
496, 11 Pae. 255; Low y. Schaffer
et ^1., 24 Or. 239, 33 Pius. 678;
Boyce v. Cupper, 37 Or. 256, 61
Pac. 642; Cox y. Bernard, 39 Or.
53, 64 Pac. 860; Jones y. Conn, 39
Or. 30, 87 Am. St. Bep. 634, 64
Pac. 855, 65 Pac. 1068, 54 L. B. A.
630; Brown y. Baker, 39 Or. 66, 65
Pac. 799, 66 Pac. 193; Salem F. M.
Co. y. Lord, 42 Or. 82, 69 Pac. 1033,
70 Pae. 832: Ore. Const. Co. y. Allen
D. Co., 41 Or. 209, 93 Am. St. Bep.
701, 69 Pae. 455 ; BriU et aL y. Beed,
42 Or. 76, 70 Pac. 1029; Harrin|rton
V. Demarris, 46 Or. Ill, 77 Pac7603,
82 Pac. 14, 1 L. B. A., N. 8., 756.
In the Federal courts, Ison y. Nelson
Mining Co. (Or.), 47 Fed. 199.

South Dakota. — Lone Tree D. Co. y.
Cyclone D. Co., 15 S. Dak. 519, 91
N. W. 352. See, also, Metcalf y.
Nelson, 8 S. Dak. 87, 59 Am. St.
Bep. 746, 65 N. W. 911; Stonger y.
Tharp, 17 8. Dak. 13, 94 N. W. 402;
Lone Tree D. Co. y. Bapid (Xty K
k O. L. Co., 16 S. ,Dak. 451, 93 N.
W. 650. In the Federal courts, Sturr
9. Beck, 133 U. S. 541, 33 L. ed.
761, 10 Sup. Ct. Bep. 350.

Texas.^—UoGhee etc. Co. y. Hudson,
85 Tex. 587, 22 8. W. 398. See, aho,
Haas y. Choussard, 17 Tex. 588;
Bhodes y. Whitehead, 27 Tex. 304,
84 Am. Dec. 631; Tolle y. Correth,
31 Tex. 362, 98 Am. Dec. 540; Flem-
ing V. Dayis, 37 Tex. 173; Baker y.
Brown, 55 Tex. 877; Mud Cr. trr. A.
ft M. Co. y. Viyian, 74 Tex. 170, 11
8. W. 1078; Barrett v. Metcalf, 12
Tex. ay. App. 247, 38 8. W. 758;
Cape y. Thompson, 21 Tex. Ciy. App.
681, 53 8. W. 368; aeme'nts y. Wat-
kins Land Co., 86 Tex. Ciy. App. 339,
82 8. W. 665; Watkins L. Co. y.
Clements, 98 Tex. 678. 107 Am. St.
Bep. 653, 86 8. W. 733, 70 L. B. A.
964; Santa Bosa etc. Co. y. Pecas
etc. Co. (Tex. Ciy. App.), 9S 8. W.
1016. In Texas on the arid lands

THE LAW OF APPROPRIATION.

i 2S

§ 23. Siparian Bights Rejected in Seven States and Terri-
tories.— ^tn the following States and Territories the common law
of riparian rights is rejected in toio. Lux v. Haggin and similar
cases being either not considered, or commented upon and con-
sidered, but rejected.

The early California decisions had long been practically au-
thority throughout the West when the first case arose in Colorado,
in 1872, after a long line of California decisions following Irwin
v. Phillips had, since 1855, become familiar to the profession.
In 1872 Colorado was still a Territory, and the case of Yunker
V. Nichols arose in the territorial court.**^ The case is quoted
later herein on the point actually asserted, and as to which the
writer conceives it is no longer law in any jurisdiction. The
question was not one of appropriation of water, but of right of
way for a ditch. There were three opinions given, none exactly
the same, holding that an irrigator has a way of necessity over
another's land to water. It did not involve a dispute as to rights
in the water itself. But the court was emphatic that all land-
owner rights whatsoever are subject in Colorado to the necessitj

riparian rights are not strictly en-
forced against appropriators, therci
being a different rule for the arid
and non-arid lands. Barrett v. Met-
calf, 12 Tex. Civ. App. 247, 33 S. W.
758. Arid regions in Texas are de-
fined in Hall v. Garter, 33 Tex. Civ.
App. 230, 77 S. W. 19, as those por-
tions where rainfall is insufficient for
agricultural purposes and irrigation is
necessary; and merely that irrigation
would be beneficial, though not neces-
sary, is insufficient.

Washington. — ^Benton v. Johncox, 17
Wash. 277, 61 Am. St. Bep. 912, 49
Pac. 495, 39 L. B. A. 107. See, also,
ShotweU V. Dodge, 8 Wash. 337, 36
Pac. 254 ; Sander v. Wilson, 34 Wash.
659, 76 Pac. 280 ; City of New What-
com V. Fairhaven L. Co., 24 Wash.
493, 64 Pac. 735, 54 L. B. A. 190; Ne-
salhous V. Walker (Wash.), 88 Pac.
1032. In Benton y. Johncox, the
court says: ''That such rights, as
well as the right of prior appropria-
tion, have hitherto been recognized
in the decisions in this State, mil be
disclosed by an examination of the
following cases: Thorpe v. Tenem
Ditch Co., 1 Wash. St. 566, 20 Pac.

588; Ellis v. Pomeroy ImproTcment
Co., 1 Wash. St. 672, 21 Pac. 27;
Geddis V. Parrish, 1 Wash. St. 587,
21 Pac. 314; Crook y. Hewitt, 4 Wash.
749, 31 Pac. 28; Bigney y. Taeoma
etc. Water Co., 9 Wash. 576, 38 Pac
147, 26 L. B. A. 425; Isaaes y. Bar-
ber, 10 Wash. 124, 45 Am. St Bep.
772, 38 Pac. 871, 30 L. B. A. 665."
Kendall y. Joyce (Wash.), 93 Pac.
1091.

United States Supreme Court. —
Sturr y. Beck, 133 U. S. 541, 33 L.
ed. 761, 10 Sup. Ct. Bep. 350, is a
positive decision in support of the
California doctrine. (Arose on ap-
peal from Territory of Dakota.) See
also, Winters y. United States. 28
U. S. Sup. Ct. Bep. 208, 207 U. S.
564, 52 L. ed. .

Miscellaneous. — The Western law of
appropriation in lieu of riparian
rights, citing the Western cases, was
urged in Wisconsin, Huber y. Her-
kel, 117 Wis. 355, 98 Am. St. Bep.
933, 94 N. W. 354, 62 L. B. A. 589,
and in Illinois, Druley v. Adam, 102
ni. 202, biit in both the court refused
to recognize appropriation at alL

i« 1 Colo. 551.

i 2S mSTOBIGAL BEYIEW. 43

of those diverting water for irrigation. Though hence only
dictum in its absolute rejection of riparian rights, it was very em-
phatic. Mr. Mills, of the Colorado bar, says of it:^**^ "It prac-
ticaUy swept away the common-law doctrine of riparian rights as
applicable to Colorado, long before a case actually arose between
an appropriator of water for irrigation and a riparian claimant
along the natural stream. Such a case did not actually arise un-
til some ten years later. * '

In the next case after Yunker v. Nichols,^^ the question was
also of right of way oyer land for a ditch, not of riparian right
to water. The prevailing opinion seems to be against the Yun-
ker case as to a way of necessity, but the dissenting opinion of
Thatcher, J., strongly reasserts it, saying that it ''is founded on
the imperious lawd of nature, with reference to which it must
be presumed the government parts with its title." In the next
case,^^ the extent of the easement was limited ''to the narrowest
limits," with the least possible damage; "it has been well said
that the necessity of one man's business is not to be made the
standard of another man's right." Coffin v. Left Hand Ditch
Co. *^ is the next case. It did not actually involve the rights
of prior riparian owners. Those claiming as riparian owners
were subsequent in time of title to the appropriators, and would
have no rights even under the California doctrine. The de-
cision is not at all hostile to riparian rights as applied under
the. Calif omia doctrine, for the point ^tually decided, "If ap-
propriated by one prior to the patenting of such soil by another,
it is a vested right, entitled to protection, though not mentioned
in the patent,"^*'' is part of the California doctrine. The Cali-
fornia court considered the Coffin case in Lux v. Haggin, and
pointed out that the actual decision in the Coffin case involved
only the rights of subsequent settlers, and hence was not in
fact hostile to riparian rights. The Coffin opinion, however,
made no distinction between prior and subsequent settlers, and
declared that on the ground of imperative necessity no settlers
can claim any right aside from appropriation. This dictum re-
jecting the riparian rights of the prior settler is generally taken

■

*« Mills' Irrigation Manual, p. i« Crisman v. Heiderer, 5 Colo.

34. 696.

1** Schilling v. Bominger, 4 Colo. i« 6 Colo. 443.

100. 147 Page 449.

I ■'

THE LAW OP APPBOPi^ATION.

) 23

as the original precedent for the rejection of the eommon lair
in toto under what is now called. ^^ the Colorado doctrine.

This Colorado doctrine is in force in the following jurisdic-
tions: Arizona, Colorado, Idaho, New Mexico, Nevada, Utah,
Wyoming.^*®

In some of these the decision is aided by constitutional, or
statutory provision, cited and construed in the eases. In others.

14S Long on Irrigation, sec. 6.

149 Arizona, — Clough v. Wing, 2
Ariz. 371, 17 Pac. 453; Austin v.
Chandler (Ariz.), 42 Pac. 483; Bo-
quillas etc. Co. v. Curtis (Ariz.), 89
Pac. 504.

Colorado. — Coffin t. Left Hand
Ditch Co., 6 Colo. 443. See, also.
Yunker v. Nichols, 1 Colo. 551; Schil
ling Y. Bonioger, 4 Colo. 100; Cris-
man v. Haiderer, 5 Colo. 596; Ham-
mond V. Rose, 11 Colo. 526, 7 Am.
St. Bep. 258, 19 Pac. 466; Oppen-
lander v. Left Hand Ditch Co., 18
Colo. 142, 31 Pac. 854; Crippen v.
White, 28 Colo. 298, 64 Pac 184.
But it seems that the common l^w of
riparian rights applies to domestic
uaea (infra) y and there are decisiona
In the Federal courts for Colorado
baaed on the common law of riparian
rights genemlly. Mason v. Cotton, 4
Fed. 792, 2 McCrary, 82; Schwab
V. Beam, 86 Fed. 41. Kansas v. Col-
orado^ 206 U. S. 46, 51 L. ed. 956,
evaded the issue upon the law of
waters.

Idaho. — Drake v. Earhart, z Idaho,
750, 23 Pac. 541; Boise etc. Co. v.
Stewart, 10 Idaho, 38, 77 Pac. 26.
In the Federal courts, see KraJl v.
United States, 79 Fed. 241.

New Mexico. — Trambley v. Luter-
man, 6 N. Mex. 15, 27 Pac. 312;
United States ▼. Bio Grende etc. Co.,
9 N. Mex. 303, 51 Pac. 674; S. C,
174 U. S. 706, 43 L. ed. 1136, 19
Sup. Ct. Bep. 770; Albuquerque etc.
Co. V. Gutierrez, 10 N. Mex. 177, 61
Pac. 357; S. C, Gutierres v. Albu-
querque Land etc. Co., 188 U. S.-545,
47 L. ed. 588, 23 Sup. Ct. Bep. 338.

Nevada. — Bene etc. Co. v. Steven-
son, 20 Nev. 269, 19 Am. St. Bep.
364, 21 Pac. 317, 4 L. B. A. 60
(though Yan Sickle v. Haines, 7 Nev.
249, had been the other way) . Jones
V. Adams, 19 Nev. 78, 3 Am. St. Bep.
788, 6 Fac. 442, is frequently re-

ferred to as overruling the Van Sickle
ease, but it did ao only on a different
point. Twaddle v. Winters (Nev.),
86 Pac. 284. In the Federal courts.
Van Sickle v. Haines had been fol-
lowed (before it was overruled) by
Union etc. Co. v. Ferris, Fed. Cas.
No. 14,371, 2 Saw. 176; Union etc.
Co. V. Dangberg, Fed. Cas. No.
14,370, 2 Saw. 450, whioh were prac-
tically overruled by Union etc. Co. v.
Dangberg, 81 Fed. 73. See, also, An-
derson V. Bassman^ 140 Fed. 14.

Utah. — Stowell v. Johnson, 7 Utah,
215, 26 Pac. 290; Salt Lake City v.
Salt Lake etc. Co., 25 Utah, 456, 71
Pac. 1069; Nash v. Clark, 27 Utah,
158, 101 Am. St. Bep. 953, 75 Pac.
371, 1 L. B. A., N. S., 208; S. C, 198
U. S. 361, 49 L. ed. 1085, 25 Sup. Ct.
Bep. 676; Cole v. Biehards Irr. Co.,
27 Utah, 205, 101 Am. St. Bop. 962,
75 Pac. 376. But see Willow Cr. etc.
Co. V. Mclntyre, 21 Utah, 248, 81
Am. St. Bep. 687, 60 Pac. 943, 51
L. B. A. 280.

Wyoming, — ^Moyer v. PiQaton, 6
Wyo. 308, 71 Am. St. Bep. 914, 44
Pac. 845; Willey v. Decker, 11 Wyo.
496, 100 Am. St. Bep. 939, 73 Pac.
210.

U?iited States Supreme Court. —
While there has been no actual de-
cision of the United States supreme
court enforcing the Colorado doctrine
against a riparian owner, yet reeent
cases contain much matter showing a
clear determination to uphold the Col-
orado doctrine in states that have
adopted it. United States v. Bio
Grande etc. Co., 174 U. a 706, 43
L. ed..ll36, 19 Sup. Ct. Bep. 770;
Gutierres v. Albuquerque etc. Co.,
188 U. 8. 545, 47 L. ed. 588, 23
Sup. Ct. Bep. 338; Clark v. Nash,
198 U. S. 361, 49 L. ed. 1085, 25
Sup. Ct. Bep. 676; Kansas v. Col-
orado, 206 U. S. 46, 51 L. ed. 956.

§ 23

HISTORICAL REVIEW.

notably Nevada, it was reached without statute. In dll of them
the point is to-day covered by statute.^** There has been, how-
ever, an adoption of the common law in all the Western States
as the basis of their general law.****

These States generally arrived at their conclusion in the same
way as Colorado. For example, in New Mexico a case arose
which, like the CoflSn ease, presented an appropriation prior to
the riparian settlement, but the New Mexico court *^* cites the Cali-
fornia eases as supporting its ruling that** the common law, as to
rights of riparian owners, is not in force in this Territory nor in
California, Nevada, and other Pacific States." The California
decisions were not clearly understood.

In reaching the conclusion in Colorado, an early statute was
referred to. The Colorado territorial legislature in 1861 ^^ pro-
vided that all landowners on the banks of a stream are entitled
to use the water for irrigation, and in 1862 *" that no stream shall
be diverted to the detriment of any landowner along it. In
1864,**^ **who have a priority of right" was inserted with refer-
ence, to the landowner. This statute has been copied in other
States.^^ The Wyoming court, like the Colorado court, held
it to be a positive rejection of riparian rights because it per-
mitted irrigation.^*'^ In Montana, South Dakota and Washing-
ton, however, the exact contrary is declared. Instead of reject-
ing riparian rights the statute is held a simple exposition thereof,
preserving the stream to the neighboring landowners, who have
settled prior to the appropriation.^** A casual reading of the

1^ The constitutional provision re-
lied on in Cololrado is Colorado Con-
stitution, article 16, sections 5 and
6; in Idaho, article 15; section 3;
in Wyoming, article 1, section 31.

1^1 United States v. Rio Orande
etc. Co., 174 U. S. 704, 43 L. ed.
1136, 19 Sup. Ct. Rep. 770.

132 Twambley v. Luterman, 6 N.
Mex. 25, 27 Pac. 312.

i» Stats. 1861, p. 67, sec, 1.

1^ Stats. 1862, p. 48, sec. 48.

i» stats. 1864, p. 68, sec. 32.

i3« Viz.: Wyoming (Comp. Laws,
1867, c. 65, sec. 1; Rev. Stats. 1317),
Uoniana (Bannack's Stats. 367, sec.
1, 2), North Bakoka (Rev. Codes,
CiT. Code, sec. 4798), Scmth Dakota
(Stat. ; cf. Stats. 1907, p. 382,

sec. 31), and Washington (Laws 1873,
p. 520, Pierce's Codes, 1905, sec.
5123; HiU's Codes, sees. 1718, 1761,
1774).

137 Willey V. Decker, 11 Wyo. 496,
100 Am. St. Rep. 939, 73 Pac. 210;
Moyer v. Preston, 6 Wyo. 308, 71
Am. St. Rep. 914, 44 Pac. 845.

158 Thorp V. iVeed, 1 Mont. 651,
per Wade, C. J.; Lone Tree D. Co.
V. Cyclone D. Co., 15 S. Dak. 519, 91
N. W. 354; Benton v. Johneox, 17
Wash. 277, 61 Am. St. Rep. 912, 49
Pac. 498, 39 L. R. A. 107; Dickey v.
Maddux (Wash.), 93 Pac. 1090; Ken-
dall v. Joyce (Wash.), 93 Pac. 1091.
Cf,, also, Bigelow v. Draper, 6 N.
Dak. 152, 69 N. W. 570.

THE LAW OF APPBOPBIATION.

§ 24

statute certainly would give the impression that it was very
similar in intent to the early California provision that ''The
rights of riparian proprietors are not affected by the provisions
of this title."**® It certainly sounds like the expressions used
by courts following the California doctrine in expressing the
riparian x)\yner's right to irrigate. The insertion of "priority of
right" in 1864 strengthens this as entirely supported by the Cali-
fornia doctrine which, at its foundation, requires the riparian
owner to have settled prior to the appropriation if he would as-
sert his riparian right. Nevertheless, it has been one of the
features relied on in Colorado and Wyoming to support the abso-
lute rejection of riparian rights, as above set forth.

§ 24. In the Supreme Court of the United StatcB.— While
Judge Stephen J. Field was on the bench, the decisions of the su-
preme court of the United Sta^s were given on the theory which
he himself was instrumental in forming, that of the California
doctrine, their purport being only that the appropriator deraigned
his rights from the United States as proprietor of the public lands,
and that he was protected against the riparian claims of settlers if
^ the appropriation was prior in time to the settlement, and that the
Federal statutes so aflftrmed in order to prevent the loss of the appro-
priation on a later sale of the public land by the United States to the
private landowner. This earlier line of the decisions follows close
to the historical rationale of the doctrine which gave it origin as
a system of disposing of rights on the public domain, and culmi-
v/ nated in Sturr v. Beck,^®*^ actually enforcing the California doc-
trine in favor of a prior settler when private riparian land was in-
volved. This first stage of the United States supreme court's de-
cisions includes Atchison v. Peterson,^'* Basey v. Gallagher,*^ Jen-
nison v. Kirk,i«3 Broder v. Water Ca^«* and Sturr v. Beck.i«°

But a second stage of the decisions of the supreme court of
the United States has within recent years been reached, which
disregards the proprietary rights of the United States as having any
bearing upon the rights of an appropriator. Recent cases have all

150 Cal. Civ. Code, see. 1422.

160 133 U. S. 541, 33 L. ed. 761,
10 Sup. Ct. Rep. 350.

161 20 Wall. 507, 22 L. ed. 414.

162 20 WaU. 670, 22 L. ed. 452.

163 98 U. 8. 453, 25 L. ed. 240.

164 101 U. S. 274, 25 L. ed. 790.
I65.ie9 133 U. 8. 641, 33 L. ed.

761, 10 Sup. Ct. Rep. 350.

i 24 HI8TOBI0AL BEVIEW. 47

gone to that court from jurisdictions where the Colorado doctrine
is in force, and the theory on which they are based is entirely that
of the Colorado doctrine, regarding tlie right of appropriation as
dependent purely on local sovereign power to arbitrarily fix the
local law, without any attempt to reconcile this with the decisions
of the earlier or "public domain" stage. This line of decisions in-
dndcB United States v. Rio Grande etc. Co./''® Gutierres v. ^Albu-
querque etc. Co.,*''* Clark v. Nash,*^ and Kansas v. Colorado.*'''
This line of authorities is based on a determination to uphold the
Colorado doctrine in such States as have adopted it, and upon which
rights have there grown up of great value. They are not, however,
clear on the precise ground upon which it is to be upheld. The first
two*''^ declare for a construction of the early Federal statutes as
leaving the matter entirely to local law, a construction in total
waiver of the Federal rights as landowner, in opposition to the early
and historically correct construction of those statutes; while the
latter two *^^ show a determination to pass by those statutes, and to
treat the question as one inherent in local sovereignty, regardless
of Federal proprietorship; a view strongly asserted in Kan-
sas V. Colorado but not actually decided because the decision
was rested on the insufficiency of a showing of damage in the
case by the riparianists such as would warrant an injunction,
even if the anti-riparian system were not sound. But in the last
case of all, it is said by Mr. Justice McKenna: "• ''The power of
the government to reserve the waters and exempt them from ap-
propriation under the State laws is not denied and could not
be." This is inconsistent with what Mr. Justice Brewer said in
Kansas v. Colorado, and he accordingly dissented.

These decisions will be considered more at length later ; for the
purpose of this historical statement the following passage best
shows the present attitude of the supreme court of the United
States: ''This court must recognize the difference of climate and
soil which renders necessary these different laws in the States

iTO 174 U. 8. 690, 43 L. ed. 1136, iw United States v. Bio Grande etc.

19 Sup. Ct. Bep. 770. Co. and Qntierres v. Albuquerque etc.

m 18S U. a 645, 47 L. od. 588, ^' ^ , ^ , , ^

23 Sap. Ct. Bep. 338. Colo^o ""' "*" ^'

Jll^^^'^' ^^l^** ^- "^ ^^^' "• Winters v. United States, 207
25 Sop. Ct. Bep. 676. XT. 8. 664, 28 Sup. Ct. Bep. 208, 62 h,
m 206 U. 8. 46, 61 L. ed. 956. ed. .

*« THE LAW OF APPBOPBIATION. | S

m situated."'" That is, whatever may be the true theory, the water
laws of each State will be upheld on thi gronnd of expediency
liecauae of the valuable rights which have ^rown up under both
aystems.

E, LATEB AND BECENT LEOiaLATION.

§ 26. Irrigation Codes. — In California and some of the States
following the California doctrine, there has been no recent legis-
lation directly affecting the law of waters. But in other States.
chiefly the arid States, extensive codes have been adopted, with-
in the last few years, based solely on the law of appropriation,
and chiefly for the encouragement of irrigation, though appI,riD?
to all pursuits, under the influence in some degree of the United
States Reclamation Service. This legislation is still going on.
The features of this legislation originated partly in Colo-
rado, but chiefly in Wyoming, where they owe much to the
influence of Professor Elwood Mead, formerly of the Uniteil
States Department of Agriculture, and recently appointed head
of the Irrigation Administration of Australia. In Utah, a code
was adopted hy the 1903 session of the legislature "" and repealed
by the next, and a new code substituted '™ very similar and in
parts identical; '*" and again in 1907. In Wyoming there is nrneh
legislation on this subject and in 1905 a statute was passed ap-
pointing code commissioners to draft a new code to be presented to
the next legislature,**' and a code adopted in 1907.'** In eight of

. 361. 838, 23 Sop. Ct. Bep. 558; Telloride
Eep. etc. Co. v. Bio Onnde ete. Co., U^
676. ' ' U. S. 569, 47 L. ed. 307, 23 Sup. Ct.
Thera b&ve been the foUowiag, de- Hep. 178; Qutierrea t. AIbaqiier<|iir
eisioDs in the euprerae court ol the etc. Co., 188 U. 8. 545, 47 L. oi. 5Si,
United States: AUhJBOO v. Peteraon, 23 Snp. Ct. Bep. 338; Clark t. NmIi.
87 U. 8. 507, 22 L. ed. 414; Buey 1»8 U. 8. 861, 49 L. ed. I0S5, M
V. GBllaKber, 87 V. 8. 670, 28 L. Sup. Ct. Eep. 678; Eaaau v. Coil-
ed. 4.^2; Jennison v. Kirk, 98 U. 8. rado, 206 U. S. 46. 51 L. ed. 9M;
453, 25 L. ed. 240; Broder t. Water Winters v. United States, 207 C. 8,

Co., 101 U. 8. 274, 25 L. ed. 790 ; 564, 52 L. eH. , 28 U. 8. Snp- Cl-

Stnrr v. Beck, 133 U. 8. 541. 33 L. Bep. 208. See Hndwrn ete. Co. t.

ed. 761, 10 Sup. Ct. Eep. 350; By- MoCarter {U. S. 8np. Ct), April,

bee V. Oregon etc. Co., 139 U. 8. 863, 1908, not jet reported.

35 L. ed. 305, 11 Snp. Ct. Bep. 641 ; iTB Iaw> Utah. 1903, e. 100.

Bear Lake etc. Co. v. Garland, 184 ira Laws Utah, 1006, e. 108.

U. 8. 1 , 41 L. ed. 387, 17 8op. Ct. iw 8ee statntes in^ro.

Bep. 7; United 8hite« v. Bio Onnde isi Laws Wyo. 1905, p. !8. Lil«-

etc. Co., 174 n. 8. 690, 43 L. ed. wise Montana, 8ut8. 1905, p. i^^-

1136, 10 8up. Ct. Bep. 770; Kaueai iS2 See statutes, tn^ro.

V. Colorado, 185 n. 8. 125, 46 L. ed.

I 25

HISTOBICAL BEVIEW.

these States and Territories this legislation was adopted in wbole
or in large part in 1905. In 1907 this legislation was continued in
munerous States. More or less elaborate codification in this line,
having common characteristics, will be found in Colorado, Idaho,
Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Ore-
gon, South Dakota, Texas, Utah and Wyoming.^^ In Arizona ^®*
there are statutes somewhat similar to the above but somewhat
influenced by the civil law of acequias borrowed from Mexico.

The main features of this new legislation are solely adminis-
trative. The substantive law concerning the extent of right, loss
of right, and similar matters, remains as under the decisions of
the courts, largely the early California decisions. The new stat-
utes are chiefly administrative, providing for enforcement of the
rights defined by case law, and for a policing of the waters.
They are an application of the theory of public ownership of nat-
ural resources. The chief sponsor of this legislation says: '^The
growing belief in the public ownership of public utilities applies
especially to water, that most essential of all utilities. " ^*^ The
essentials of all these statutes consist in an enactment of the
law of appropriation as the sole law on the subject of waters, a
reorganization of the State for administrative purposes as con-
cerns waters ; a census, determination and listing of all existing
appropriations; a comprehensive method of making appropria-
tions hereafter; and various provisions for policing the waters.
The object of the legislation is in the nature of police regulation
under the police power to secure the orderly distribution of water
for irrigation.^^

In the United States Revised Statutes, section 2339, local customs,
'* laws'* and decisions of courts are referred to, and this has been

i» Colorado (Const., art. 16; HUb'
Ann. Stats., 1, 2, and the 19D5 edition
of Tolume 3), Idaho (Cosflt., art.' 15;
Laws 1903, p. 223, with a few amend-
meotfl in 1905, a^in amended 1907),
Nebraska (Comp. Stats. 1903), Ne-
vada (Comp. Laws, 1900, and Sees.
UvB 1901, 1903, 1905 ; Stats. 1907, p.
^), New Mexico (Laws 190Q, p.
270. c 102, and p. 284, c. 104; Stats.
1907), North Dakota (Stats. 1905,
1907), Oklahoma (Laws 1905, p.
274, e. 21) , Oregon (Laws 1905, e.
228^ p. 401) , South Dakota (Laws

W»ter Bights— 4

1905, p. 201, c. 132), Texas (Sayle's
Civ. Stats. 1900. art. 3115 et seq.),
Utah (Laws 1905, c. 108; Stats.
1907), and Wyoming (Const., arts.
1, 8; Bey. Stats. 1899, and Seas.
Laws 1901, 1903, 1905; Stats. 1907).
See the Statutes more particularly
set forth in Part YI below.

iM Bev. Stats. 1901, p. 1045.

186 I>rofe8Sor Elwood Mead in Bul-
letin 100, n. S. Dep. Agric, p. 64.

186 Combs V. lirmers' etc. Co.
38 Colo. 420, 88 Pac. 399.

THE LAW OF APPBOPBIATION.

§ 26

held to apply to local statutes,^*' and to the statutes of a Territory as
well as those of a State.^^ The Nebraska court has said that an ir-
rigation code of this kind unconstitutional in part would be so in
whole,^*^ but the Idaho court held the contrary.*** It is Said
that this legislation can only regulate, and cannot carry that
regulation to the extent of impairing rights held by appropria-
tors out of a policy favoring later claimants.*'*

§ 26. Effect of This Legislation upon Riparian Rights.— The
only statute naming the common law of riparian rights in order
to reject it is that of Arizona, which has not yet modeled its
statutes upon the new irrigation codes. The Arizona statute
says: **The common-law doctrine of riparian water rights shall
not obtain or be of any force in this Territory. ".^^^ On the other
hand, the Oregon statute expressly mentions and preserves the
rights of riparian owners,*®* and likewise Washington.**** Aside
from these exceptions, the common law of riparian rights is not
expressly mentioned in any of these statutes ; but is indirectly re-
jected in toto by a provision that the right to appropriate unap-
propriated water shall never be denied ; ^^ or a provision that
the right to waters can arise by appropriation and in no other
^^y 196 adding a phrase common in the States rejecting riparian
rights in toto, that "beneficial use shall be the basis, the measure
and the limit of all rights to the use of water. "*^ In Idaho it'
is declared that the right to appropriate unappropriated water
shall never be denied, and that priority of appropriation gives
the better right in appropriation of water.*^ And similar pro-
visions exist in all these statutes.

187 Basey v. Gallagher, 20 Wall.
670, 22 L. ed. 452.

188 Gutierres v. Albuquerque etc.
Co., 188 U. 8. 545, 47 L. ed. 588, 23
Sup. Ct. Eep. 338.

188 Crawford v. Hathaway, 61 Neb.
317, 85 N. W. 306.

190 Bear Lake v. Budge, 9 Idaho,
703, 108 Am. St. Bep. 174, 75 Pac.
615; Boise etc. Co. v. Stewart, 10
Idaho, 38, 77 Pac. 25.

i»i Willey V. Decker, 11 Wyo. 496,
100 Am. St. Rep. 939, 73 Pac. 210.

102 Eev. Stats. 1901, sec. 4168
(Civ. Code).

iw Laws 1905, c. 228.

iM See statutes.

195 For example, Colo. Const., art
16, sec. 6; Neb. Comp. Stats. 1903,
sec. 6451; Wyo. Const., art 8, sec, 3;
Idaho Const., art. 15, see. 3; Stats.
1905, c. 23, 52b; N. Mex. Stata. 1905,
p. 270, sec. 1.

196 For example, Nev. Comp. Law*
1900, sec. 359; Utah Laws 1905, c
108, sec. 34.

i»7 For example, Nev. Stats. 1903,
p. 24, sec. 1, 1907, p. 30; N. Mex.
Stats. 1907, c. 49, p. 71, sec 2; N.

Dak. Stats. 1905, p. , sec. 2; S.

Dak. Stats. 1905, p. 201, sec. 2; Utah '
Stats. 1905, c. 108, sec. 49.

198 Idaho Const., art. 15, see. 3.

S 26 HISTOBICAL BEVIEW. 51

•

Most of the States adopting this legislation hostile to common
law of riparian rights. are, as has been said, the arid States, where
the eonrts had previously taken the same attitude. In Nebraska,
North Dakota, Oregon and South Dakota, howeyer, the coiirts
had previously followed the California doctrine recognizing and
enforcing the rights of riparian proprietors. In the last three,
these statutes being only adopted recently, there has been no
ehance for testing their effect upon the existing rights of riparian
proprietors; but in Nebraska ^^ the matter gave rise to much liti-
gation, and the court held ^^ that it would be beyond the power
of the legislature, after riparian rights had been recognized and
vested, to deprive riparian owners of those rights hitherto en-
joyed by them. Statutes such as these, the court held, cannot
take away the rights of existing riparian owners, as it would be
a taking of property without due process of law. In its opinion
the court says:

''The right of a riparian proprietor to the reasonable use of
water flowing in a natural channel is property, which is protected
by the aegis of the constitution, and of which he cannot be de-
prived against his will, except for public use, and upon due com-
pensation for the injury sustained. If the legislature had un-
dertaken to sweep away and abolish this right, we would not be
warranted in giving the act judicial sanction. Where, by any pos-
sible construction of a reasonable nature, legislation can be up-
held, it is our duty to give it such a construction as will uphold,
rather than destroy, it. The irrigation act of 1895 is valid when
eonstmed as not interfering with vested property rights which
have been acquired by riparian proprietors."

The Nebraska decisions upheld the statute as introducing ap-
propriation, and abrogating riparian rights accruing, thenceforth^
and considered appropriation as resting solely on these statutes,
holding that before the statutes appropriation did not exist at
all.^^ In so far as Nebraska upholds the abrogation of the com-
mon law by State statute for future purposes, it is .contrary to
Lnx V. Haggin.. The California court placed its decision to a

iw The legifllatioii in Nebraska was 325, 108 Am. St. Bep. 647, 93 N. W.

tnbttantiallj an adoption of the Wj- 781, 60 L. B. A. 889.

oming kws. Farmers' Lrr. Dist. v. 201 Meng v. Coffey, 67 Neb. 500,

Fnak, 72 Neb. 136, 100 N. W. 286. 108 Am. St. Rep. 697, 60 L. B. A.

aw Crawford v. Hathaway, 67 Neb. 910, 93 N. W. 715.

THE LAW OF APPBOFRIATlON.

§ 27

great extent on the ground that abrogating the rule of riparian
rights would interfere with the primary disposal of the Federal
lands, an interference not depending upon the date of a statute,
and equally an interference if only abrogating future acquired
rights. To this extent departing from Lux v. Haggin^ the
Nebraska court said:^^ ''That it was competent for the legis-
lature to abrogate the rule of the common law as to riparian
ownership in Testers as to all rights which might have been ac-
quired in the future, and substitute a system of laws providing
for the appropriation and application of all the unappropriated
waters of the State to the beneficial uses as therein contemplated,
there exists, it would seem, no reasonable doubt. "^^ As the
decision in Lux v. Haggin was rested largely on constitutional
grounds, a strict adherence to the California doctrine does not
recognize any power in the legislature to abrogate riparian rights
present or future. As to present rights, it would take them away
without due process of law- (that is clear), and as to future rights.
Lux v. Haggin held that it would interfere with the primary dis-
posal of the public lands (which, however, in view of Kansas v.
Golorado,^^ while not disproved, has been cast in doubt).

§ 27. Later Federal Legislation. — Since the statutes of 1866
and 1870, Congress has only indirectly touched the subject of
private rights in waters. In 1877,. by the Desert Land Act,** the
right to appropriate such an amount of water as might be nee-
essarily used for the purpose of irrigation and reclamation of
desert land, part of the public domain, was granted, and it was
further provided that '*A11 surplus water over, and above such
actual appropriation and use, together with th^ water of all lakes,
rivers, and other sources of water supply upon the public lands
and not navigable, shall remain and be held free for the appro-

202 Crawford v. Hathaway.

203 The Nebraska court farther held
in the same case: "In the irrigation
act of 1889 the legislature sought to
classify the streams in this State,
and restrict riparian rights to those
owning lands bordering on streams
not exceeding a certain width; but
this attempted restriction proved abor-
tive as an unwarranted act calculated
to deprive riparian proprietors of
vested proper^ rights without due

compensation, contrary to constitution-
al provisions in that regard. ' ' Citiiig
Clark V. Cambridge Irrigation Co.,
supra.
. 204 206 U. 8. 46, 51 L. ed. 856.

205 Act of Congress March 3, 1877,
19 Stats, at Large, 377, c. 107, V.
S. Comp. Stats. 1901, p. 1549. This
statute applied to the entire West ex-
cept Colorado, which was included in
1891. 1 Snpp. Bev. Stats. 941, 942.

§ 27 HISTORICAL BEVIEW. 53

priation and use of the public for irrigation, mining, and manu-
faetoring purposes, subject to existing rights." The supreme
court of the United States has held ^^ that this is merely declara- ^
tory of the earlier statutes of 1866 and 1870 and added nothing
new.

In 1888, an appropriation bill provided for an examination of
feasible plans for reservoirs and irrigation projects, irrigable
lands, etc., to be withdrawn from entry (similar to the National
Irrigation Law of June 17, 1902) .«>^ In 1890 the reservation of
lands, excepting for reservoir sites, was repealed.^^ In the same
year (1890) patents for land were made subject to (reserving)
rights of way for ditches and canals, west of 100th Meridian
** constructed by the authority of the United States." ^ This is
the only act prior to tiie National Irrigation Act, which applies
to Federal ditch building, that not being covered by Revised
Statutes, 2339, 2340.^<^ All private land since patented is sub-
ject to government ditch building.^^

In 1891 right of way over public lands and government reser-
vations was granted for reservoirs, canals and ditches upon filing
articles of incorporation, maps and statements in the land office,^^
aad the act has been since supplemented. This act of March 3,
1891, introduced nothing new into the subject, other than to give
certain additional privileges over public lands, and to include
government reservations; but gave no right to build ditches
where the local law did not already give it ; it did not have the
effect of subordinating the rights of existing, settlers to ditch
building, but applied only to unoccupied public land.^^^ It is only
enmulative to Revised Statutes 2339, 2340, which required no
filings. It grants additional privileges and protection to those
who choose to avail themselves of it, but is not obligatory. It
(and the aets supplementary thereto) expressly subordinates
rights under the act to the local law. Further comment is given
later herein.^^*

3W Gntierres v. Albuquerque ate. 211 Ihid,

Co., 18S U. 8. 545, 47 L. ed. 58S, 23 212 26 Stats. 1095; 1 Supp. Bey.

Sup. Ct. Bep. 388. Stats. 946.

^ 1 Supp. Befv. Stats. 698. 2i3 Nippel y. Forker, 9 Oolo. App.

»8 Id., pp. 791, 792. 106, 47 Pae. 766. See Federal stat-

M 2M1, p. 792; 26 Stats, at Large, utes in Part YL

391. 214 See tn/ra, see. 149a.

no Qreen y. Wilbite, Fed. ;

Same v. Same (Idaho), 98 Pae. 971.

64 THE LAW OP APPROPRIATION. { 28

To aid the States in the reclamation, settlement, and cultiva-
tion of the arid land, an act of Congress,^^^ commonly called the
Carey Act, granted to each State not exceeding 1,000,000 acres
of public lands upon condition that the State should cause to be
irrigated, reclaimed, occupied, and cultivated by actual settlers
twenty acres of each one hundred and sixty-acre tract within
ten years after the passage of the act.

Other various acts are given in Part VI below. The purport
of these acts is mostly to facilitate the development of the pub-
lic domain under the local law of each State.

§ 28. National Irrigation Act. — ^The National Irrigation Act
(passed in the year 1902) ^^ does not directly affect the law of
waters. It aims at the building of irrigation works by national,
financial and engineering aid under existing State laws concern-
ing waters. The essence of the National Irrigation Act is that
the United States as landowner provides for certain engineer-
ing projects upon its lands, to be carried out in conformity with
State law. ^directly it has had much influence, in that the ir-
rigation codes of most of the States and Territories above men-
tioned were adopted under the influence of the Reclamation Ser-
vice for the purpose of forwarding the work of the Federal gov-
ernment.

President Roosevelt, in an annual message,^'' among other
things, said: **The distribution of the water, the division of the
streams among irrigators, should be left to the settlers themselves
in conformity with State laws and without interference with
those laws or with vested rights." In another annual message^'*
he stated: '^The reclamation act has been found to be remark-
ably complete and effective, and so broad in its provisions that

a wide range of undertakings has been possible 'under it

The act should be extended to include the State of Texas. "

The possibilities of this great governmental investment in ir-
rigation works are remarkable. It has been said by the Chief

215 Section 4 of the Civil Appro- 217 To the Fifty-seventh CongresB,
priation Act of the fiscal year ending Ist Session, Gong. Bee, voL 35, PP'
June 30, 1895, dated August 4, 1894 85, 86.

(28 Stats. 422). 218 Of Deeember 6, 1904, to the

216 Given in full in Part VI below. 58th Congress, 3d Session, found in
See, also, 33 Stats. 352, 359 ; 34 Stats, volume 39 of the Congressional Bee-
259. ord, page 14.

S9 29, 30 HISTORICAL REVIEW. 55

of the Reclamation Serviee,^^^ speaking generally of irrigation
aside from the act as well.as under it, that up to the present time,
as shown by the census investigations, there have been irrigated
upward of ten million acres within the arid region, and a popu-
lation of approximately three million persons is dependent upon
them. It is probable, he says, that by complete storage of all
the flood waters, by pumping water from underground, and by
the most thorough application of water to the soil, upwards of
fifty or sixty million acres may ultimately be reclaimed, and if
that is done within the next generation or century, it will prob-
ably result in a population of one person to two acres irrigated ;
or one person to one acre irrigated, or, roughly, fifty millions oi
people may be supported in addition to the number now within
the arid region.

§ 29. Water Users Associations.— The National Irrigation Act
provides that the persons receiving water from the government
systems shall organize into associations, in which associations title to
the water rights used shall vest in the time and manner prescribed
by the act. Preliminary associations, called ''water users associa-
tions," are now being organized. Owners must agree to turn over
to the management of the association any water rights they may al-
ready have, to.be administered in connection with the additional
water supply to be furnished from the government works. Some
states have passed statutes for the organization of such associa-
tions as corporations.^^ The articles of incorporation of the Salt
River Valley Water Users Association in Arizona are usually re-
ferred to as a guide to the form of drawing the articles, though
the law of each State must be referred to.^^

§ 30. Irrigation Districts— Wright Act.— The California legis-
lature in 1872 passed an act^^ providing that the owners of land
susceptible of one mode of irrigation may combine for the com-
mon purpose, contributing the water rights owned by each or
acquiring new ones in the usual ways. Similar legislation al-

2» P. H.- NeweU in bis testimony in M- ^' 8-i 3d ed., see. 491, s. t., N.

Kansas v. Colorado, 206 U. 8. 46, 51 J^*^; S****. 1905, c. 193.

li. ed. 956 221 See pamphlet published by the

*^ o V. 1 a^* m/viT Anf United States Reclamation Service,

220 See Cal. Stats. 1907, c. 40/ ; Washington, D. C.

Colo. Laws 1905, p. 360, c. 141, 3 222 Stats. 1871-72, pp. 945-948.

THE LAW OF APPROPRIATION.

S 31

ready existed for the formation of '' Reclamation Districts'^ to
reclaim swamp lands.*® In 1887 *** the statute well known as the
* ' Wright Act ' ' was passed for the same pnrpose, an elaborate stat-
ute providing for the formation of irrigation districts.^" It was
held in yiolation of the constitution of the United States by Judge
Boss in the southern district of California,^" but on appeal to the
supreme court of the United States was upheld,*" reversing Judge
Ross. It has been copied in many other States and its constitu-
tionality since always upheld. The act was repealed in California
and a new act passed in 1897, which has been since amended.
Statutes for the formation of irrigation districts based on tiie
Wright Act of California exist in California, Colorado, Idaho,
Kansas, Montana, Nebraska, Nevada, Oregon, Texas, Utah, Wash-
ington and Wyoming.^^

The law of irrigation districts is further considered elsewhere
in this book.^^

§ 81. Btatmient of the Doctrine of Appropriatioii.— Before

closing this chapter it might be well to present the summary of
general principles given by Judge Hawley.*** While not intended
as a complete review of the doctrine, it sets forth fundamental
principles that are of frequent application to-day:

223 Infra^ sec. 103.

224 Act of March 7, 1887.

220 See infra, sec. 429, and see stat-
utes in Part VL

226 Bradlej v. Eallbrook Irr. Dist.,
68 Fed. 048.

227 Fallbrook Irr. Dist. v. Bradley,
164 U. S. 112, 41 L. ed. 369, 17 Bup.
Ct. Bep. 56.

228 CaZi/offiia.— Stats. 1897, p. 267,
c. 189, sometimes called the "Bridge-
ford Act."

Col<wa<Jo.— Stats. 1901, p. 87, 1903,
p. 265, 8 M. A. 8., 1905 ed., sec.
2309a et seq., amd. 1907, p. 488.

Idaho. — ^Laws 1899, p. 408; Laws
1908, p. 150, amd. at length 1907, p.
484.

Kansas, — Gen. Stats. 1899, sees.
3575-3598; Gen. Stats. 1901, sec. 3683
et seq.

Montana. — Stats. 1907, p. 136.

NehrasTca, — Gomp. Stats. 1899, sees.
5511-5574; Comp. Stats. 1903, sec.
6476 et seq.; Oobbey's Ann. Neb.

Stats., sec. 6825 et seq.; Am. Stats.
1905, p. 649, cc. 165, 196.

Newxda,-^-<}omp. Laws 1900, sees.
374-423.

Oregon, — ^BaDinger 4s Cotton 's Ann.
Codes, see* 4700 et seq.

rca?a».— Sayles' Civ. Stata. 1906,
Snpp., p. 269.

I7t«*.--Stats. 1888, p. 127; Bev.
Stats. 1898, see. 1287 et seq. Be-
pealed, but leaving eTisting districts:
See StaU. 1905, c. 108, see. 71.

Washington. — Ballinger 's Code,
sees. 4166*4249; Pierce's Codea, sees.
5736, 5881, etc.

Wyoming. — Stats. 1907, p. 103.

229 See see. 429 et seq.

230 Hewitt V. Story, 64 Fed. 510,
12 C. C. A. 250, 30 L. B. A. 265,
and repeated by him in Union etc
Min. Co. V. Dangbetg (C. C. N«v.),
81 Fed. 78, and again repeated hj
the learned judge in Bodgera ▼. Pitt
129 Fed. 982.

§ 31 mSTORICAL REVIEW. 57

'* Under the principles of prior appropriation, the law is well
settled that the right to water flowing in the public streams may
be acquired by an actual appropriation of the water for a bene-
ficial use; that, if it is used for irrigation, the apprdpriator is
only entitled to the amount of water that is necessary to irrigate
his lattd by making a reasonable use of the water; that the ob-
ject had in view at the time of the appropriation and diversion
of the water is to be oonmdered in connection with the extent and
right of appropriation; that if the capacity of the flume, ditch,
euial, or other aqueduct, by means of which the water is con*
dncted, is of greater capacity than is necessary to irrigate the
lands of the appropriator, he will be restricted to the quantity
of water needed for the purposes of irrigation, for watering his
stock, and for domestic use; that the same rule applies to an
appropriation made for any other beneficial use or purpose; that
no person can, by virtue of his appropriation, acquire a right to
any more water than is necessary for the purpose of his appro-
priation ; that, if the water is used for the purpose of irrigating
lands owned by the appropriator, the right is not confined to
the amount of water used at the time the appropriation is made ;
that the appropriator is entitled not only to his needs and ne-
cessities at that time, but to Biidh. other and further amount of
water, within the capacity of his ditch, as wouldtbe required for
the future improvement and extended cultivation of his lands, if
the right is otherwise kept up ; that the intention of the appro-
priator, his object and purpose in making the appropriation, his
acts and conduct in regard thereto, the quantity and character
of land owned by him, his necessities, ability, and surroundings,
must be considered by the courts, in connection with the extent
of his actual appropriation and use, in determining and defining
his rights ; that the mere act of commencing the construction of
a ditch with the avowed intention of appropriating a given
quantity of water from a stream gives no right to the water un-
less this purpose and intention are carried out by the reasonable,
diligent, and intelligent prosecution of the work to the final
completion of the ditch, and diversion of the water to some bene-
ficial use ; that the rights acquired by the appropriator must be
exercised with reference to the general condition of the country
and the necessities of the community, and measured in its extent

JS8

THE LAW OP APPBOPEIATION.

S 31

by the actual needs of the particular purpose for which the ap-
propriation is made, and not for the purpose of obtaining a
monopoly of the water, so as to prevent its use for a beneficial
purpose by other persons ; that the diversion of the water ripens
into a valid appropriation only where it is utilized by the appro-
priator for a beneficial use ; that the surplus or waste water of a
stream may be appropriated, subject to the rights of prior ap-
propriators, and such an appropriator is entitled to use all such
waters; that, in controversies between prior and subsequent ap-
propriators of water, the question generally is whether the use
and enjoyment of the wa^er for the purposes to which the water
is applied by the prior appropriator have been in any manner
impaired by the acts of the subsequent appropriator.

''These principles are of universal application throughout the
States and Territories of the Pacific Coast. "^^

281 Citing cases. •

S 32 UNITED STATES OB STATE. 59

CHAPTER n.

UNITED STATES OR STATE.

A. CALIPOBNIA DOCTRINE.

$ 32. The Uiiited States or the State— California system.
$ 33. Appropriation as a grant under this system.

B. COLOBADO DOCTBINE.

S 34. United States or State — Colorado doctrine.

I 35. Statement of the Colorado ^oetrine.

I 36. Water "the property of the public'' or "of the State.''

I 37. Comments on the Colorado view.

S 38. Beplies to these objections.

! 39. Same.

{ 40. Views of the supreme court of the United States.

§ 41. Same.

S 42. Some inconsistencies.

\ 43. Condnsion. *' - .

A. CALIFOBNIA DOCTRINE.

§ 32. The United States or the State— California Doctrine.—

In California and the States following the California doctrine
by "government" is meant the owner of the public lands, to
which the doctrine of appropriation ultimately alone applies, and
this is usually the United States, as the public lands were and
still are chiefly Federal lands. But it may also signify the State
where (as in comparatively few cases) title to the public land
is in the State instead of in the United States. The principle
is firmly settled under the California doctrine that the appro-
priator usually receives his rights from the United States as
landowner of the public lands. The positions of the government
as landowner and as lawmaker are kept entirely distinct.

By the treaty of Guadalupe Hidalgo,^ the United States, at the
time the miners arrived in California, had succeeded to the Mex-
ican title and was the sole owner of the lands through which the
streams wholly flowed, excepting only the few cases where Mexico
faad previously made grants of ranches to private persons, wjiich
grants the United States respected. These lands were held by
the United States, and since the admission of the State into the

1 9 Stats, at Large, 928.

THE LAW OP APPROPRIATION.

S 32

TJnioD are now held (where not reserved or purchased for for-
tifications, etc.) 7 as are held the lands of private persons, with
the exception that they are not taxable, by reason of the con-
tract to that effect. An incident to this sole ownership of the
land was the right to the waters flowing throngh it. This right,
it is said, was the same as that acquired by the United States
in its acquisition of any land, whether in California or Missouri
This unlimited right to the waters is said to be that of a sole
riparian proprietor at common law. As original and sole riparian
proprietor, the United States had unlimited right to do with the
streams what it chose. It could grant the right to the water
separate, in which case an appropriation resulted, or it could
grant the land and the right to the water together, in which case
the private riparian right resulted. It chose to do either, ac-
cording to which claimant first took possession; granting the
water alone if the appropriator was the first arrival on the stream;
but granting the land and water (as riparian right) together if
a settler took possession of the riparian land before the attempt
at appropriation. But chiefly, in the early days, it granted the
right to the water separate, by silent acquiescence in the customs
of the miners who usually took it that way, having in the first
few years no use for the land for settlement purposes. This is

the reasoning of the California doctrine.

An essential link in this reasoning is the proposition that im-
mediately upon the cession of the land, the right of the United
States to the waters was that of a riparian proprietor at common
. law. This is arrived at as follows : It was for a time questioned
whether mines were included as an incident in the Federal owner-
ship of the public domain. State ownership of mines was strongly
asserted in some quarters, but in Moore v. Smaw,* Chief Justice
Stephen J. Field, to whom the framework of the early law of
waters as well as mines is due, settled it that mines and all other
incidents to the land belonged to the United States as landowner
or proprietor of the public lands. The United States, being the
sole owner of the lands, was the sole owner of the use of the
waters thereon, with unlimited power to deal therewith as it saw
fit, from the date of the treaty of Guadalupe, before the arrival of
the Pioneers. This unlimited right, the court holds in Lux v. Hag-

2 17 Cal. 199-255, 79 Am. Dec. 123.

9 as UNITED STATES OB STATE. 61

gin, is aaBbnilated to the right of a sole riparian proprietor at com-
mon law. First, beeanae both were unlimited, and there was
hence no anfastantial difference. Second, because the right of a
sole proprietor under Mexican law (the only other possible law)
would be substantially the same as at common law, supposing
the title of the United States to depend on Mexican law ; for un-
der Mexican law no one without a right of access through owner-
ship of riparian land (with a few exceptions) had a right to the
water. Third, because, if by Mexican law there was any right
in the State as sovereign to supervise the use of waters, the
adoption of the common law by the State was a surrender to
riparian proprietors of those rights because inconsistent with the
common law.

As stated in Lux v. Haggin: ''Between the transfer of Cali-
fornia to the United States, by the treaty of Guadalupe Hidalgo,
and the admission of this State into the Union, no territorial
govermnent was here established. The purely municipal law
of Mexico continued in force within this territory until modi-
fied or entirely changed by appropriate authority.'* General
Riley declared the Mexican law abrogated even before the State
government was organized, though it is doubtful whether any
effect may be ascribed to this proclamation of a military officer.
As soon as the State government was organized, however, the
legislature immediately did what was in effect the same. On the
13th of April, 1850, the legislature of California had passed an
act ''adopting the common law," which reads: **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 laws
of the State of California, shall be the rule of decision in all the
courts of this State, "^ and Lux v. Haggin says: "We think, in
view of the purpose of the act (to adopt the appropriate rules
of the common law as determinative rules when not in conflict
with the constitutions and statutes) and of the subsequent ju-
dicial history of the State, the act of April 13, 1850, should now
be held to have operated (at least from the admission into the
Union) a transfer or surrender, to all riparian proprietors, of the
property of the State, if any she had, in innavigable streams, and
the soils below them.**

3 Stats. 1850, p. 219.

61!

THE LAW OF APPROPRIATION.

S 32

It thus resulted that within a year after the discovery of gold,
if not before, the common law concerning waters was in force
in California, and at the same time the United States, as a sole
riparian proprietor, had unlimited right to do with the waters
what it chose. As is well known as a matter of history, Congress
regarded California as almost an unknown region and for a
long time did nothing at all, and the miners and ' 'forty-niners"
drifted along their own course respecting this public domain
without hearing from Congress one way or the other. They ap-
propriated to themselves the public lands, its mines, its waters.
and other incidents. This custom of appropriating Federal
property was upheld by the State courts between private persons
because the settlement of the whole state depended upon it. A
grant from the United States as proprietor to the first appropria-
tor was presumed on the principle that silence gives consent. A
prior appropriation, whether of mines, or of water alone, or of
land and water together, being a prior presumed grant, was re-
served from a later presumption of grant. K the prior presumed
grant was of land, it carried all the incidents to the land, in-
eluding the riparian right. The United States could grant the
water separate, or the land and water together, and did both, but
chiefly, in the early days, it granted the right to the water sep-
arate, by silent acquiescence in the customs of miners who usuallj
took it that way. But when, in the few cases, one took riparian
land and chose to insist on it, his grant included the common-law
right against all who came later, that being an incident to or
part of the land. In general, then, says Lux v. Haggin, if waters
are actually appropriated prior to a Federal grant of land, they
are reserved out of the grant, but otherwise the right to the
waters passes as riparian right with the land grant. ''A grant
of public land of the United States carries with it the common-law
rights to an innavigable stream thereon, unless the waters are ex-
pressly or impliedly reserved by the terms of the patent, or of
the statute granting the land, or unless they are reserved by the
congressional legislation authorizing the patent or other muni-
ment of title. ' ' *

4 Lux V. Haggin.

A somewhat different theory was
suggested by Judge Knowles in Mon-
tana, which does not elsewhere ap-

pear, but may be mentioned as show-
ing the difficulty of the question wbeo
water rights on the public lands sre
traced to their beginning. In Thorp

I 32 UNITED STATES OB STATE. 63

The following will serve as examples of the way this theory is
summarized by the courts: In Lux v. Haggin, the court says:*^
''Recognizing the United States as the owner of the lands and
waters, and as therefore authorized to permit the occupatipn or
diversion of the waters as distinct from the lands, the State courts
have treated the prior appropriator of water on the public lands
of the United States as having a better right than a subsequent
appropriator, on the theory that the appropriation was allowed
or licensed by the United States. It has never been held that
the right to appropriate waters on the public lands of the United
States was derived directly from the State of California as the
owner of innavigable streams and their beds. And since the
act of Congress granting or recognizing a property in the waters
actually diverted and usefully applied on the public lands of the
United States, such rights have always been claimed to be de-
raigned by private persons under the act of Congress, from the
recognition accorded by the act, or from the acquiescence of the
general government in previous appropriations made with its
presumed sanction and approval/' In Cruse v. McCauley,® the
eonrt says: ''In the eastern part of Montana the United States
acquired its title to lands by virtue of what is called the 'Louis-
iana Purchase. ' There cannot be one rule as to the right to the
flow of water over its lands in Montana and another rule as to
its lands in Iowa and Missouri. In these last-named States, there
can be no doubt of the rule that the national government would
be entitled to the water which is* an incident to its land. As
the United States then owns the waters which are an incident to
its lands, it can dispose of them separate from its lands if it
chooses." In Howell v. Johnson : "^ "The water in an innavigable
stream flowing over the public domain is a part thereof, and the
national government can sell or grant the same, or the use there-
of, separate from the rest of the estate, under such circum-
stances as may seem to it proper." In a Nebraska case: "Prac-
tically all the lands in the semi-arid portions of the State at

V. Freed, 1 Mont. 651, Judge Knowles appropriated separatelj bj some one

eouidered the nnsarveyed public else, reaching the same result as above.

luids as belonging to no one, ffoing s 69 Cal. 255, at 339, 10 Pae. 674.

to the ftiBt appropriator, until the 0 96 Fed. 369.

United States asserted title; that the ^ 89 Fed. 556 (G. G. Mont.),

tat appropriation of land included Knowles, J.

the water unless the water was first

THE LAW OP APPEOPBIATION.

S 33

the time belonged to the government. It wa3 the riparian pro-
prietor and authorized the appropriation and diversioii of the
water for agricultural, mining, and manufaoturing purpoaes."^
In a eaae showing much study of the question it is said, com-
menting on the law of Montana : ''In that Stale the doctrine more
generally known perhaps as the 'California doctrine' prevails.
Stated briefly, that doctrine is that while a stream is situated on
the public lands of the United States a person may, under the
customs and laws of the State and the legislation of Congress,
acquire by prior appropriation the right to use the wafers there-
of for mining, agricultural, and other beneficial purposes, and to
construct and maintain ditches and reservoirs over and upon the
public land, such right being good against all other private per-
sons, and by statute good as against the United States and its
subsequent grantees; but that, when a grantee of the United
States obtains title to a tract of the public land bordering on a
stream, the waters of which have not been hitherto appropriated,
his patent is not subject to any possible appropriation subse-
quently made by another party without his consent/'®

Incidentally, the unlimited right to the waters being in the
United States when the stream is wholly on public land, the
fact that it actually uses them for a reservation adds notiung
new to the character of its right, which was complete whether
actually using the water or not.^®

Speakiag generally, and aside from questions arising out of the
police power of the State, it is said that the ultimate right to
waters on public lands is vested ia the United States, and not the
State, and ** utterly beyond the power or control of State legis-
lation,*' except as sanctioned by Congress.^^

§ 33. Appropriation as a Orant Under This System* — ^Under
this view it is universally recognized that an appropriation con-
stitutes a grant from the United States to the appropriator,
originally implied from the silent acquiescence of the United
States, now resting on sections 2339, 2340, Revised Statutes of the

8 Crawford v. Hathaway, 67 Neb.
325, 108 Am. St. Rep. 647, 93 N. W.
781, 60 L. B. A. 889.

9 Willey V. Decker, 11 Wyo. 496,
100 Am. St. Rep. 939, 73 Pac. 210.

10 Story V. Wolverton, 31 Mont. 346,
78 Pac. 589; United States v. Conrad
Investment Co. (Or.), 156 Fed. 126.

n Kendall v. Joyce (Wash.), 93
Pac. 1091.

! 33

UNITED STATES OB STATE.

United States. ^^ The very title of. these acts enunciates the
theory of a grant from the United States: ''An act granting the
right of way to ditch and canal owners over th^ public lands
and for other purposes. "^^ In Ortman v. Dixon," for example,
the court says: **We hold the absolute property in such cases
to pass by appropriation as it would- by grant." In Smith v.
Hawkins,** **An appropriator of water under these circum-
stances, and while the land which he subjects to his necessary
uses continues to be a part of the public domain, is a licensee of
the general government ; but when such part of the public domain
passes into private ownership, it is burdened by the easement
granted by the United States to the appropriator, who holds
,his rights against this land under an express grant." In Bark-
ley V. Tieleke,^^ the court says: ** Under the law of Congress a
grant of the kind of property in question is presumed by the
act of appropriation." In Smith v. DenniflP:" **A water right
can, therefore, be acquired only by the grant, express or implied,
of the owner of the land and water. The right acquired by ap-
propriation and user of the water on the public domain is founded
in ^ant from the United States government as the owner of the
land and water. Such grant has been made by Congress."^®

Further, the United States, as grantor, had power to impose
conditions on the grant to the appropriator and did so by recog-
nizing the conditions imposed by the early customs of miners
in California, especially the condition of beneficial use.

An appropriation is, then, under the California doctrine, a con-
ditional grant from the United States as grantor to the appro-
priator as grantee, and hence, because founded in grant, the
limits of an appropriation must lie within the limits, whatever
they may be, beyond which the United States had nothing to dis-
pose of, never having owned, or having parted with. The sys-

12 Conger v. Weaver. 6 Cal. 548,
at 558, 65 Am. Dec. 528; Kidd v.
Uird. 15 Cal. 161, 7B Am. Dec. 472;
Ortroan t. Dixon, 13 Cal. 33 ; OBgood
V. El Dorado Water Co., 56 Cal. 571 ;
liux V. Haggrin, 69 Cal. 255, 10 Pac.
674; Smith V. Hawkins, 110 Cal. 122,
4'^ Pac. 453; and many other cases
l^ght be cited if it were not that it
w a principle accepted to-day in Cali-
fornia without comment. But rf.
\Vater Rights— 5

Duckworth v. WatsonviUe etc. Co., 150
Cal. 520, 89 Pac. 338.

13 Approved July 26, 1866, Rev.
Stats., sec. 2339; 14 Stats. 253, c. 263,

14 Cited supra.

15 110 Cal. 122, 42 Pac. 453.

16 2 Mont. 59.

17 24 Mont. 20, 81 Ain, St. Bep.
408, 60 Pac. 398, 50 L. R. A. 741.

18 Citing Wood v. Etiwanda Water
Co., 122 Cal. 152, 54 Pac. 726 ; Welch
v. Garrett, 5 Idaho, 639, 51 Pac. 405.

ea THE LAW OF APFBOPBUTION. 11 34,35

tem of appropriation could have eflfect only where the United
states as landowner bad power to permit it by grant. This
moat be insistM on becanae it is a fiindamental principle to be
carried tbrongh the subject. The conclusion to be drawn from
this matter is that under the California doctrine an appropriator
receives his rights from the owner of the public lands as land-
owner, not as lawmaker, and that this is usually the United
States and not the State. The legislative power of the State
is limited to governing procedure in its courts,*' or to matters
within the police power, and subject to the constitutional limi-
tations against infringing on the powers of Congress, or inter-
fering with the guaranty of vested rights.

B. COLORADO DOCTBINE.
g 34. United States or State— Colorado Doctrine.— The view ol
the States following the Colorado system (the distinctive re-
sult of which is the rejection of the common law of riparian
rights in toto) relies not so much on the gronnd that the doc-
trine of appropriation rests on the sanction of United States,
as on an entirely distinct ground ; namely, that the common law
was unsuited to Western conditiona, and only such parts of the
common law are brought by settlers into new communities as
are suited to their conditions— a familiar doctrine. It rather de-
nies that the United States as landowner was ever entitled to the
rights of a riparian proprietor, because the law of the places
where the lands lay never sanctioned riparian rights, for the
above reason. Consequently no grantee of the United States
can have riparian rights. Instead, appropriation is the sole law
recognized. The appropriator looks for his rights to the State,
and not the United States, these States usually having constitu-
tional or statutory provisions expressly declaring that the owner-
ship of all waters is in the State (or in the public), and that the
right to the use thereof can be obtained by appropriation, aod
in no other way.

g 3S. Statement of the Colorado Doctrine. — In Willey v.
Decker,^ the authorities in support of this view are presented.
First, setting forth the California view, the conrt says:

8 35 UNITED STATES OB STATE. 67

*'Upon that theory the right acquired by prior appropriation
on the pnblie domain is held to be founded in grant from the
United States government, as owner of the land and water, under
the acts of Congress of 1866 and 1870: U. S. Rev. Stats., sees.
2339, 2340 ; U. S. Comp. Stats. 1901, p. 1437.

''In this State, on the other hand, the common-law doctrine
concerning the rights of a riparian owner in the water of a natural
stream has been held t5 be unsuited to our conditions; and this
court has declared that the rule never obtained in this jurisdic-
tion. (Moyer v. Preston, 6 Wyo. 308, 71 Am. St. Rep. 914, 44
Pac. 845.) It was said in the opinion in that case that 'a dif-
ferent principle better adapted to the material condition of this
region has been recognized. That principle, briefly stated, is
that the right to the use of water for beneficial purposes depends
upon a prior appropriation.' And, further, in explanation of the
reasons for the existence of the new doctrine, it was said: *It
is the natural outgrowth of the conditions existing in this region
of country. The climate is dry, the soil is arid and largely un-
productive in the absence of irrigation, but when water is applied
by that means it becomes capable of successful cultivation. The
benefits accruing to land upon the banks of a stream without any
physical application of the water are few; and while the land
contiguous to water, and so favorably located as to naturally de-
rive any sort of advantage therefrom, is comparatively small in
area, the remainder, which comprises by far the greater propor-
tion of our land otherwise susceptible of cultivation, must for-
ever remain in their wild and unproductive condition unless
they are reclaimed by irrigation. Irrigation and such reclama-
tion cannot be accomplished with any degree of success or per-
manency without the right to divert and appropriate water of
natural streams for that purpose and a security accorded to that
right. Thus, the imperative and growing necessities of our con-
ditions in this respect alone, to say nothing of the other bene-
ficial uses, also important, has compelled the recognition rather
than the adoption of the law of prior appropriation. '

**In view of the contention in Colorado that until 1876 the
common-law principles of riparian proprietorship prevailed in
that State, and that the doctrine of priority of right to water

by priority of appropriation was first recognized and adopted

68 THE LAW OP APPBOPBIATION. S 35

in the const itutioD, the supreme court of that State, by Mr. Jus-
tice Helm, concluded a discussion of the matter as follows; 'We
conclude, then, that the common-law doctrine giving the riparian
owner a right to the flow of water in its natural channel upon
and over his lands, even though he makes no beneficial use
thereof, is inapplicable to Colorado. Imperative necessity, un-
knoM-n to the countries which gave it birth, compels the recogni-
tion of another doctrine in conflict therewith. And we hold that,
in the absence of express statutes to the contrary, the first ap-
propriator of water from a natural stream for a beneficial pur-
pose has. with the qualifications contained in the constitution,
a prior right thereto, to the extent of such appropriation.' And
it was further said that the latter doctrine has existed from the
earliest appropriations of water within the boundaries of the
State. (Coffin v. Left Hand Ditch Co., 6 Colo. 443.)

"When the question was first considered in the State of
Nevada, the court held that the patentee of the government sue
ceeded to all of its rights, and among these was the right to have
the water of a stream theretofore ^' diverted returned to its natural
channel: Vansickle v. Haines, 7 Nev. 249. But that case was
overruled in Jones v. Adams, 19 Nev. 78, 3 Am. St. Rep. 788. 6
Pac. 442. And in Reno Smelting etc. Works v. Stephenson, 20
Nev. 269, 19 Am. St. Rep. 364, 21 Pac. 317, 4 L. R. A. 60, it was
uneciuivocally declared that the common-law doctrine of riparian
rights was unsuited to the condition of that State. The court
said: 'Here the soil is arid and unfit for cultivation unless irri-
gated by the waters of running 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 con-
ducting water, and lands otherwise waste and valueless become
productive by artificial irrigation. The condition of the country,
and the necessities n£ the situation, impelled settlers upon the
public lands to resort to the diversion and use of waters. This
fact of itself is a striking illustration and conclusive evidence
of the inapplicability of the common-law rule.'

21 Note the word ' ' theretofore. ' ' after. ' ' The ' ' theretofore " was

Tn aci holiling (as it did) the early Ne- oreimled in Jones v. Adam*. The

vada deciaioD nent to a length not "thereafter" ma not involved until

tO'dar in f<irc<! anywhere. The Cali- the Reno eaae.
fornia doctrine aaya only "there-

§ 35 UNITED STATES OB STATE. 69

**The leading case in Arizona is Clough v. Wing, 2 Ariz. 371,
17 Pac. 453. In that ease it is said that the problem to be solved
in the arid portions of the earth has not been how best to drain
the water off the land and get rid of it, but how to save it to be
conducted upon land in aid of the husbandman. The learned
judge who wrote the opinion refers to the antiquity of irrigation
in that section of country and in other lands, and remarks: 'Thus
we see that this is the oldest method of skilled husbandry, and
probably a large number of the human race have ever depended
upon artificial irrigation for their food products. The riparian
rights of the common law could not exist under such systems;
and a higher antiquity, a better reason, and more beneficent re-
sults have flowed from the doctrine that all right in water in non-
navigable streams must be subservient to its use in tilling the
soil ' And, further, it is said that the common law, so far as the
same applies to the uses of water, 'have never been, and is not
now, suited to conditions that exist here. '

"The supreme court of Utah say: 'Riparian rights have never
been recognized in this territory, or in any state or territory where
irrigation is necessary ; for the appropriation of water for the pur-
pose of irrigation is entirely and unavoidably in conflict with the
common-law doctrine of riparian proprietorship. If that had
been recognized and applied in this territory it would still be a
desert ; for a man owning ten acres of land on a stream of water
eapable of irrigating a thousand acres of land or more, near its

mouth, could prevent the settlement of all the land above him.
For at (!ommon law the riparian proprietor is entitle^ 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 ir-
reconcilable with the use of water for irrigation. The legislature
of this territory has always ignored this claim of riparian pro-
prietors, and the practice and usages of the inhabitants have
never considered it applicable, and have never regarded it.'
(Stowell V. Johnson, 7 Utah, 215, 26LPac. 290.)

''In disposing of what the court calls the 'phantom of riparian
rights,' and declaring that the maxim, 'first in time, first in right,'
should be settled law in that jurisdiction, the supreme court of
Idaho forcibly state the reasons for the new doctrine: 'Whether
or not it is a beneficent rule, it is the lineal descendant of the law

THE LAW OP APPROPRIATION.

S 3d

of necessity. When, from among the most energetic and enter-
prising classes of the East, that enormous tide of inunigration
poured into the West, this was found an arid land, which could
be utilized as an agricultural country, or made valuable for its
gold, only by the use of its streams of water. The new inhabi-
tants were without law, but they quickly recognized that each
man should not be a law unto himself. Accustomed as they
had been, to obedience to the laws they had helped make, as the
settlements increased to such numbers as justified organization,
they established their local customs and rules for their govern-
ment in the use of water and land. They found a new condition
of things. The use of water to which they had been accustomed,
and the laws concerning it, had no application here. The de-
mand for water they found greater than the supply, as is the un-
fortunate fact still all over this arid region. Instead of attempt-
ing to divide it among all, thus making it unprofitable to any,
or instead of applying the common-law riparian doctrine to which
they had been accustomed, they disregarded the traditions of
the past, and established as the only rule suitable to their situa-
tion that of prior appropriation. This did not mean that the
first appropriator could take what he pleased, but what he ac-
tually needed, and could properly use without waste. Thus was
established the local custom, which pervaded the entire West,
and became the basis of the laws we have to-day on that sub-
ject.' (Drake v. Earhart, 2 Idaho, (716), 750, 23 Pac. 541.)''
In another Wyoming case^ it is said: ''This use and the doctrine
supporting it is founded upon the necessities growing ont of
natural conditions, and is absolutely essential to the development
of the material resources of the country. Any other rule would
offer an effectual obstacle to the settlement and growth of this
region,. and render the lands incapable of successful cultivation.''
As to the effect of this inapplicability upon the common law
the statutes of Nevada adopted the common law of England
in the following words: **The common law of England, so far as
it is not repugnant to or in conflict with the constitution and laws
of the United States, or the constitution and laws of this State,
shall be the rule of decision in all the courts of this State." The

22 Farm Inv. Co. v. Carpenter, 9 W70. 110, 87 Am. St. Rep. 918, 61
Pac. 258, 50 L. R. A. 747.

5 35

UNITED STATES OB STATE.

supreme court of Nevada, in Beno Smelting etc. Go. ▼. Steven-
son,'' constroing this statute in its application to riparian rights,
said: ''The statute is silent upon the subject of the applicability
of the common law, and we think the term 'common law of Eng-
land' was implied in the sense in which it is generally under-
stood in this country, and that the intention of the legislature
was to adopt only so much of it as was applicable to our con-
dition." And Judge Hawley said in declaring the law of
Nevada:^ "Riparian rights are founded upon the ancient doc-
trine of the common law. If the law is a progressive science,
courts should keep pace with the progress and advancement
of the age, and constantly bear in mind the wants and necessi-
ties of the people and the peculiar conditions and surroundings
of the country in which they live. In this connection it has been
said to be one of the excellencies of the common law, that it ad-
mits of perpetual improvement, by accommodating itself to the
circumstances of every age, and applies to all changes in the
modes and habits of society, and in this respect it will never be
outgrown by any refinements, and never out of fashion, while
the ideality of hnman nature exists." In an Arizona case,^ in
a concurring opinion: "Without further elaboration of my rea-
sons, I state my belief that the utter incompatibility of the doc-
trine of riparian rights with the conditions of life in this terri-
tory is an all-sufficient reason, under the principles of the common
law itself, to hold that that doctrine is not here in force. "^
Under the Colorado doctrine, the grant principle of the Cali-
fomia theory is not recognized. "We had occasion recently to
consider whether the right of a citizen to use water within the
state for irrigation of lands is granted by the State or general
gOYemment, and were unable to discover any principle of that
kind."^ A patent from the government to land through which

» 20 Nev. 269, 19 Am. St. Bep.
364) 21 Pae. 317, 4 L. B. A. 60.
^ Union Min. Co. v. Dangberg, 81

«6Q. 73.

SB Boqoillas etc. Go. v. Curtu
(Ariz.), 89 Pac. 504.

^ Oompare what was said in an
ctrlj (klif omia ease eoneeming min-
ing rights. Sanderson, G. J., in Mor-
ton 1, Balambo Min. Go., 26 Gal. 527,
spoke against being "tied down to

the treadmill of the eommon law" in
regard to mining rights. And com-
pare the opinion of l^w, J., in Katz
▼. Walkinshaw, 141 Gal. 116, 99 Am.
St. Bep. 35, 70 Pac. 663, 74 Pac.
766, 64 L. B. A. 236, eoneeming the
law of percolating waters, and apply-
ing the same reasoning thereto.

27 Hoge V. Eaton, 135 Fed. 411,
citing Mohl v. Lamar Ganal Go. (G.
G.), 128 Fed. 776.

'2 THE LAW OF APPBOPBIATION. { 36

irater flows or percolates does not give color of title to the
water. ^ That is, the land grant does not confer even color
)f title as a grant of the water. It was held ™ that the legislature
■ould not confer water rights hy grant. Possession and use of the
ivater are necessary to create the right to its continued use.

§ 36. Same— Water "the ProperQr of tbe Public" or "of the
State." — Accompanying this view that the law of appropriation
rests upon the inapplicability of any other rule are statutes or
constitutional provisions expressly declaring that the ownership
if all waters is in the State (or in the public). "In this aotj
jther jurisdictions where the common law in respect to the use
>f water and the right thereto is altogether ignored, there has
been established, either by judicial decision or statute, or both,
as an essential principle, that the water of all natural streams
is the property of the public or of the State." ^ All waters with-
in the State are declared to be "the property of the public" (or
to "belong to the public") in Arizona, Colorado, Montana.
fJevada, New Mexico, Oklahoma, North Dakota, South Dakota.
Utah, atid Wyoming."' In the following, declared to be "the
property of the State" : Idaho, Nevada, North Dakota, Wyoming.*'

As to the latter declaration that waters are the "property of
the State," it was undoubtedly intended by the legislatures as the
assertion or declaration that the State owned the corpus of the wa-
ter as proprietor.** But the courts do not follow the legislatures

28 Clark V. Ashlej, 34 Colo. 285, 82 Wyoming.— Stata. 1886; Bev. 8t»B.

Pac. .588. 1887, sec. 1344.

» Plalte Water Co. v. Northern ^ Idaho.— Civ. Code IMl, set.

[rr. Co.. 12. Colo. 525, 21 Pac. 711. 2625.

so Willey V. Deeker, 11 Wyo. 496, „'f"^^~^:^^^- ^"» ^?"' *"

100 Am. St. R*p. 93fl, 73 Pac. 210. ^3*} S^to. 190., p 30, wc. 1.

«' ^m<,„o.-Bev. sW 1901, sec. ^'^"' »^"---CoMt. — '■ -
41T4 (running water is ' ' declared
public").

Coloraa».-Ccn.t., art. 16, ^. 5. „„ , pr'i;:i;ie'"n;;"trA"m"ri«': ....

Montona.— Const., art. 15. gation law. The State waa declared

210.

Wyoming, — Cooat., art, 8, »ec. 1.
"These provisiODB were fonnW

Nevada. — Stat*. 1903,

Nete Meiko.— StatH. 1907,' p. 71,

North Dakota. — Stats. 1905, p.

South Da to (a .—Stats. 1905, p. 201

»c. 1; StatB. 1907, p. 373, tec. 1.

Ulflft,— StaU. 1905, c, 108; State.

1907, pp. 56, 248. Dept. Agric.

to be tbe owner of the water, and
rights to its use were to be aequirvd
hj grant or license from the Stale;
.... the ' principle in mind when
the laws were enacted waa uDdonbt-
e'll; that the State was propriftnr
of the water and (j'snted rights tii
■■ Bulletin 168, L'. 9

I 36

UNITED STATES OB STATE.

to the full end intended that waters are the property of the State
as proprietor either as a usufruct or its corpus. The courts lean
toward construing such a declaration as meaning, in an old phrase
of the law,** that waters are ^'publici juris," and free for all to
take, under State police power regulation.

The courts, in the first place, say that a declaration **the prop-
erty of the State'' is synonymous with ** property of the public."
The Wyoming court says:^ ** There is to be observed no ap-
preciable distinction, under the doctrine of prior appropriation,
between a declaration that the water is the property of the
public, and that it is the property of the State," and in three
States above both expressions are used in the statutes.

But the decisions are not clear either as to the meaning of
'* property of the public." Some expressions still cling to the
idea of State proprietorship, though only as a trustee for the
public; yet still find that the State has, for the purpose of the
trust, actual proprietorship or ownership in the waters the same
as in a public building.^

The decisions as a whole, however, upon this matter go the
whole length of denying any effect to these declarations so far as
they attempt to confer any proprietorship in waters upon the
State at all, and hold either phrase as meaning merely, in an old
expression of the law,®'' that waters are **publici juris.^^ That
water is a wandering thing, whose corpus is incapable of owner-
ship, the utmost right being usufructuary, a use and flow only,
and may be used by any member of the public first applying,
subject to State police power regulation. ** Under the rule per-
mitting the acquisition of rights by appropriation the waters be-
come perforce 'publici jurisy^ "^ and in a Colorado case: ^ **The
waters of flowing streams are puhlid juris — ^the gift of God to all
His creatures."^ The State's oflBce is regulative, to see that

** Infra, sees. 269-272.

35 Fann Inv. Co. v. Carpenter, 9
Wyo. no, 87 Am. St. Eep. 918, 61
Pac. 258, 50 L. B. A. 747.

^ Thus in Wyatt v. Lanimer etc.
Co., 1 Colo. App. 480, 29 Pac. 906,
it seems to have been thought that
tiie phrase ''property of the pub-
lie" in the Colorado constitution
means that the State holds a title as
owner to the waters, subject to a
trust for appropriators. And there

are other expressions in the cases
having the same idea.

87 Infra, sec. 272..

38 Willey V. Decker, 11 Wyo. 496,
100 Am. St. Bep. 939, 73 Pac. 210.

30 Mohl V. Lamar Canal Co. . (C.
C. Colo.), 128 Fed. 776.

40 Quoting Blackstone, bk. 2, p.
14, and saying such is the effect of
the Colorado Constitution^ art. 16,
sec. 5.

74 THE LAW OF AFFBOPBIATION. 1 M

those who use the water do not violate their datiea to each other,
and ben«e acta in ita sovereigD capacity only — not aa owner of the
water; the State operates only under the police power," "The
obvioua meaning and effect of the expression that the water is the
property of the public is that it is the property of the people
aa a whole. Whatever title, therefore, is held in and to saeh
water resides io tt)e sovereign aa representative of the people.
The public ownership, if any distinction is material, is rather thst
of sovereign than proprietor. That ownership, however, is sab-
ject to a particular trust or use, specially defined in the statutes
and in the constitution" (i. e., for use hy appropriators).** "By
either phrase, 'property of the public' or 'property of the State.'
the State, as representative of the public or the people, is vested
with jurisdiction and control in its sovereign capacity."**

As the office of the State tmder this construction is only regu-
lative and not one of actual ownership, the Idaho court considered
a suit to determine existing rights purely one to settle private
rights. It had been urged (as the legislature by the declaratioD
of State and public ownership certainly intended) that it was
primarily a determination conceming State property, but the
court held otherwise, and held that a public official (the attomej-
general) could not bring such a suit against all existing appro-
priators to show their rights. It was held a suit concerning
private property and not State property.** And likewise it is
held that an appropriation for tise outside the State is pemis-
sible, and not an abstraction of State property .**

In North Dakota and Montana a declaration of State owner-
ship is held not to prevent the existence of riparian rights.** Bat
neither court went further into the matter than to refuse to give
effect to the provision contrary to the conclusion upholding

41 Boberteon v. People (Colo.), BO Wyo, 110, 87 Am. St. Sep, 918, 61

Pao. 79, citing Parmera' etc. Co. v. Pae. 258, 50 L. B. A. 747.

Sonthworth, 13 Colo. Ill, 21 Phc. ** Bear L&ka t. Badge, 0 Idtbo,

1028, 4 L. E. A. 707; White v. Farm- 703, 108 Am. St. Eep. 179, 75 P»e.

en' ete. Co., 22 Colo. 191, 43 Pae. 6IS.

1028, 31 L. B. A. 828 J Lamson v. 4S y/Hley v. Decker. 11 Wyo. i96,

Vailea, 27 Colo. 201, 61 Pae. 2S1; 100 Am. St. Rep. 939, 73 Pac. 210;

Fort Lyon etc. Co. v. Chew, 33 Colo. Mohl t. Lamar Canal Co. (Colo.),

392. 81 Pac. 37. 128 Fed. 776; Hoge v. Eaton, npro.

WiUey v. Decker, 11 Wyo. 496, *■ Bigelow v. Diaper, 6 N. D»t

100 Am. Bt. Bep. 939, 73 Pae. 210.

152, 69 N. W. 570; Smith i

M l-ann. Uiv. K.o. t. (;arpeiiter, a .^ .. „ ... 50 r -d. v 741.

f 37 UNITED STATES OB STATE. 75

riparian rights arrived at in those cases. In the Montana case/^
the court says that by such declaration the State assumed to itself
the ownership of the waters '^sub modo," which is indefinite,
to say the least. In the North Dakota case it was said concerning
the effect upon riparian rights of a declaration that water is the
property of the State: ''Such rights are under the protection
of the fourteenth amendment to the federal constitution, which
protects property against all State action that does not constitute
due process of law. It follows that section 210 of the State con-
stitution would itself be unconstitutional in so far as it attempted
to destroy those vested rights of property, if it should, by con-
stmctioUy be given a scope sufficiently wide to embrace such mat-
ters. For this reason we feel constrained to hold, despite its
broad language, that section 210 was not framed to devest the
rights of riparian owners in the waters send bed of all natural
watercourses in the State." It was further said that the declara-
tion of State ownership possibly would prevent private persons
from totally diverting a watercourse, thus construing it in op-
position to appropriation entirely.^ Neither the North Dakota
nor Montana decision lends much aid in arriving at the meaning
of such phrases.^

Under the Colorado view, then, it is denied that the United
States has an interest in the waters on its lands as proprietor,
but it is denied also that the State has any proprietary interest
therein either ; instead, waters are free for use by all under State
police power regulation which protects the first-comer, the prior
appropriator, to the extent of his beneficial use.

§ 37. Comments on the Oolprado View. — ^By the followers of
the California view, aside from the practical objection above
adverted to denying the inapplicability of the dommon law, legal
objections are also urged against the Colorado doctrine as a
matter of constitutional law. The first and most important ob-
jection is that the proprietary rights of the United States as land-
owner are entirely omitted in the Colorado calculation. Re-
garding the system of appropriation as having force only by the

^ ftnifh ▼. Denniff. over the Niagara Biver, but no prop-

^ Bigelow T. Draper, 6 N. Dak. erty or ownership in its waters. Nia-

152, 69 N. W. 570. gara etc. Co. v. College etc. Co., 98

« In a recent New York ease it N. Y. Supp. 4, 111 App. Div. 770.

^8 held that the State has control

76 THE LAW OF APPBOPBIATION. S 37

permisaioD of the United States as the original landowner of all
this region, the California and similar courts have great diffi-
culty in understanding the view of those States which, following
the Colorado system, declare that the appropriator receives his
rights from the State alone, disregarding the rights of the United
States as original sole riparian owner, or the riparian rights
of the grantees of its land.

Granting that those parts of the common law which are in-
applicable are not brought in by settlers, yet the rights of the
United States antedated the settlement of the States in ques-
tion.

Some right in the United States to the waters must have at-
tached to the public land on its original acquisition by the
United States under such treaties as the Louisiana Purchase or
the treaty of Guadalupe Hidalgo. The difQculty is said to be that
some right to the unused water Sowing over the public lands of
the United States was originally the property of the United
States, and that a State cannot take the property from the United
States or interfere with the primary disposal thereof without ils
consent, and that to take it from a grantee of the United States
is a taking of property without due process of law, within the
fourteenth amendment. That the original right of the United
States before settlement of the land must have been that of sole
riparian proprietor. That the United States, having been sole
riparian owner before the settlement of the land no State can. by
a declaration of law after settlement, take those rights as riparian
owner from the United States or prevent it from giving riparian
rights to its grantee, or take them away from its grantee.

Such a refusal to recognize the rights of the United States, and
such prevention of its granting riparian rights to the grantees of ■
its land is said to be an interference with the primary disposal
of the public land; infringes on the power of Congress. Thus.
in Lux v. Haggin,*** after holding that the right to the water od
public lands originally must have belonged to the United States,
as to any landowner, as parcel thereof, or an incident thereto,
the court says: "But when the State is prohibited from inter-
fering with the, primary disposal of the public lands of the
United States, there is included a prohibition of any attempt

iio 69 Cal. S-^.'S, nt 373, 10 Pac. 674.

J 37 UNITED STATES OR STATE. 77

on the part of the State to preclude the United States from
transferring to its grantees its full and complete title to the land
granted, with all its incidents, ' ' And further says, * * But where
one or both of the parties claim under a grant from the United
States (the absolute owner, whose grant includes all the inci-
dents of the land, and every part of it), it is difficult to see how
a policy of the state, or a general practice, or rulings of the State
court with reference to adverse occupants on public lands, can
be relied on as limiting the effect of grants of the United States,
without asserting that the State, or people of the State, may inter-
fere with *the primary disposal of the public lands.' .... Of
course the State cannot interfere with the primary disposition
of such lands by their owners. September 9, 1850, the act of
Congress was approved admitting the State of California into the
Union 'on an equal footing with, the original States in all re-
spects whatever,' with the condition that the State should never
interfere with the primary disposal of the public lands within its
limits. (9 Stats, at Large, 453.) '' "

In a recent case it was said that the rights of an appropriator
do not rest on the laws of a State (even in Wyoming, one of the
arid States), but upon the laws of Congress, and the legislative
enactment of a State (Wyoming) is only a condition which brings
the law of Congress into force.®^ In Cruse v. McCauley.^ the
eoiui; says: **In the eastern part of Montana the United States
acquired its title to lands by virtue of what is called the 'Louis-
iana Purchase.' There cannot be one rule as to the right to the
flow of water over its. lands in Montana and another rule as to
its lands in Iowa and Missouri." **If a person receives a patent
from the United States for land subject only to accrued water
rights, that is, existing water rights, and as an incident to or part
of this land, there is water flowing over the same or upon the
same, he would have all the rights the United States had at that
time. I do not think any State law or custom can take away
such ripfhts except for some public purpose. ' '

As to the early Colorado decisions usually referred to, they
were only dictum, says Lux v. Haggin. as the actual decisions in-
volved only land grants subsequent to the diversion. **In Coffin

'^ Compare X. Dak. Const., art. 62 Andereon v. Bassnian, 140 Fed.

16, sec. 203. • 14, at -21.

53 96 Fed. 369.

THE LAW OF APPBOPBIATION.

§ 37

V. Left-Hand Co., .... the appropriation of the water was prior

to the patent There is nothing in that ease which wonld g:iTe

preference to an appropriation of water made, as in the case at bar,
long after the grant of the land It would seem clear, how-
ever, that the rights of parties who claimed title under grant from
the United States of parts of the public domain must be determined
by reference to laws of the United States relating to the disposition
of its domain ; and this 'fact is recognized by the .supreme court
of Colorado, which appeals to Broder v^ Water Co. as supporting
its interpretation of those laws.""

It is next objected that, as a State cannot prevent the United
States giving riparian rights to its grantee, the Colorado law
takes the private landowner's property from him without due
process of law, after it is given him by the United States, in per-
mitting its diversion from him by subsequent appropriators. Lux
V. Haggin says: **The right to the use of the water as part of the
land once vested in its private grantee, the State has no power to

devest him of the right except on due compensation

Aridity of the soil and air being made the test, the greater the
aridity the greater the injury done to the riparian proprietors
below by the entire diversion of the stream, and the greater the
need of the riparian proprietor the stronger the reason for depriv-
ing him of the water. It would hardly be a satisfactory reason
for depriving riparian lands of all benefit from the flow that they
would thereby become utterly unfit for cultivation or pasturage,
while much of the water diverted must necessarily be dissi-
pated.*'^* In Washington it was recently held^ that an act ot
the legislature, authorizing a landowner to use all the spring
water arising on his land, and thereby destroying the use
of such water to the lower riparian owner, would be unconstitu-
tional, as a taking or destroying of property without due process
of law.

54 Lux V. Haggin, 69 Cal. 255, 10
Pac. 674.

^ See, also, Bossmiller v. State,
114 Wis. 169, 91 Am. St. Bep. 910,
89 N. W. 839, 58 L. R. A. 93, where
it was held, among other things, that
the legislature could not declare that
''ice formed upon meandered lakes of
the State is the property of the
State.'' In this connection the court

said: "The legislature has no such
arbitrary power, under our constitu-
tional system, as that of changing
the nature of the ownership of prop-
erty by its mere fiat. It can no
more accomplish that result in that
way than it can change the laws
of nature by legislative declaration."
56 Nielson v. Sponer (Wash.), 89
Pac. 155.

9 37 UNITED STATES OR STATE. 79

Necessity has its limits as an argument, it is said: ''While the
argument ab inconvenienti should have its proper weight in ascer-
taming what the law is, there is no 'public policy' which can em-
power the courts to disregard the law, or, because of an asserted
benefit to many persons (in itself doubtful) , to overthrow the set-
tled law We know of no decisions which intimate that a

difference in climatic or geographical conditions may operate
to transfer a right of property from those in whom a right of
property is vested by the common law." " And in another case :
''But how it can be held that that which is an inseparable inci-
dent to the ownership of land in the Atlantic States and the
Mississippi valley, is not such an incident in this or any other
of the Pacific States, we are unable to comprehend. It certainly
cannot be true that a difference in climatic conditions or geo-
graphical position can operate to deprive one of a right of prop-
erty vested in him by a well-settled rule of common law. The
mere fact that the appellants will not be able to occupy or culti-
Tate their lands as they heretofore have done unless they can ir-
rigate them with water taken from the Ahtanum river is no suffi-
eient reason for depriving the respondents, who settled upon that
stream in pursuance of the laws of the United States, of the
natural rights incident to their more advantageous location.
The necessities of one man, or of any number of men, cannot
justify the taking of another's property without his consent, and
without compensation. If it be true, as claimed by appellants,
that, if the judgment of the court below is affirmed, their lands
will again become a barren waste, and cease to 'blossom as the
rose,' it is equally true that, if the waters of the river are di-
verted from its channel, the premises of the respondents will be-
come unproductive and utterly worthless. " ** In Nebraska it is
8aid:°® "We do not feel justified in departing from a position
80 generally recognized and accepted as being correct, so well sup-
ported by reason and authority, and which it is believed is in

soundness impregnable Not only should the inapplicability

of a common-law rule be general, extending to the wJ;iole, or the

w Lux V. Haggin. » Crawford Co. v. Hathaway, 67

» Benton v. Johneox, 17 Wash. Neb. 325, 108 Am. St. Bep. 647, 93

277, 61 Am, St. Bep. 912, 49 Pac. N. W. 781, 60 L. B. A. 889.

«8, 39 L. B. A, 107.

THE LAW OF APPROPRIATION.

S as

greater part, of the State, or at least to an area capable of
definite jadicial ascertainment, to justify the courts in disregard-
ing such rule, but we think, in view of the case with which legis-
lative alteration and amendment may be had, the power to declare
established doctrines of the common law inapplicable should be
used somewhat sparingly. In the whole course of decisions in
Nebraska, from the territorial courts to the present, this power
has been exercised but three tim^s/'^

There has been in all the Western States an adoption of the
common law as the foundation of their general system of laws,
irrespective of the law of waters.*^

§ 38. Beplies to These Objections. — In most of the decisions
in the arid States no answer to these objections is sought; they
are simply not regarded; and in the recent opinion in Kansas v.
Colorado,^ which, though merely dictum in. its support of the
Colorado doctrine, is very emphatic, they are not even mentioned.
But in so far as answers have been given, they are as follows :

First, as a direct answer, the Wyoming court has said,*^ that
the first Wyoming constitution contained provisions declaring the
waters the property of the State, and rejecting riparian rights.
This constitution was ratified by Congress on the admission of
Wyoming into the Union; and thereby the United States con-
sented to this system. A similar ratification is also claimed on
behalf of Colorado in the briefs in Kansas v. Colorado. But this
cannot cover the point in States having no such constitutional
provisions,®* nor in those where such provisions rest on subse-
quent amendment or legislation which never had the express
ratification of Congress.

Second, it is said that the abrogation of the common law took
place in the arid States from their first settlement while still
Territories, and thereby was accomplished by the United States

60 See, however, Shaw, J., in Katz
V, Walkinshaw, 141 Oal. 116, 99 Am.
St. Rep. 35, 70 Pac. 663, 74 Pac.
766, 64 L. B>A. 236, applying the
'* inapplicability " principle in favor
of rejecting the common law of per-
colating waters.

61 United States v. Bio Grande etc.

Co., 174 U. S. 704, 43 L. ed. 1136,
19 Sup. Ct. Bep. 770.

62 206 U. 8. 46, 51 L. ed. 956.

63 Farm etc. Co. v. Carpenter, 9
Wyo. 110, 87 Am. St. Bep. 918, 61
Pac. 258, 50 L. B. A. 747.

64 Lux V. Haggin, 69 CaL 255, at
352, 10 Pac. 674.

S 38

UNITED STATES OB STATE.

itself, since the territorial goyemment is a mere agency of the
United States «

But the answer usually given, when an answer is attempted, is
a reference to the Federal statutes of 1866 and 1870, Revised
Statutes, 2339, 2340. It has been argued that the acts of 1866
and 1870 were a surrender by the United States of its proprietor-
ship in the waters to the State.^ In United States v. Bio Grande
Dam and Irrigation Company,^ Mr. Justice Brewer, in speaking
of the act of Congress of July 26, 1866, of the act of March 3,
1877, commonly known as the Desert Act, and the 18th section of the
act of March 3, 1891,*® says:^ **In reference to all these cases of
purely local interest, the obvious purpose of Congress was to
give its assent, so far as the public landd were concerned, to any
system, although in contravention to the common-law rule, which

•

permitted the appropriation of those waters for legitimate indus-
tries." In T3mon v. Despain,*^ these statutes are referred to as
a declaration on the part of the United States of its intention
never (even if it has the power) to grant riparian rights to any
person; but always to reserve the waters from the land grants.^^
In so construing these early Federal statutes, their history is
not borne in mind, and a much broader construction is given them
than that of the California court and of the supreme court of the
United States at the time of their passage. Instead of a sur-
render of all Federal proprietorship, the California . and early
construction is, on the contrary^ that they were in theory an as-
sertion of Federal proprietorship, and operated by grant direct
from the United States as proprietor to the private claimant, both
the appropriator and riparian owner as the case might be. How-

^ BoqmllBS etc. Co. v. Curtis
(Ariz.), 89 Pae. 505.

« In United States v. Bio Grande
Dam & Ipt. Co., 9 N. Mex. 303, 51
Pm. 674, it is said: ''The riparian
rights of the United States were sur-
rendered in 1866. Bev. Stats., sec.

2339 Congress has manifested

a purpose to extend the longest lib-
erty of use of waters in the reelama-
tion of - the arid region, under lo-
cal regalative eontrol." And as to
this: "It is daimed that this statute
was a grant by the Federal govern-
ment to the people of the State of
the waters on the public domain.

Water Rights — 6

Crawford v. Hathaway, 60 Neb. 754,
84 N. W. 273.

«7 174 U. S. 690, 43 L. ed. 1136,
19 Sup. Ct. Bep. 770.

68 26 Stat. 1101.

w At page 706.

TO 22 Colo. 240, 43 Pac. 1039.

71 Beferring to Tynon v. Despain,
supra, the Washington court sa'ys:
"But this, it seems to us, is an un-
natural construction of sections 2^39
and 2340." Atkinson v. Washing-
ton Irr. Co., 44 Wash. 75, 86 Pac. 1123.
See State v. Superior Court (Wash.),
91 Pac. 968.

THE LAW OF APPROPRIATION.

S 38

ever, some such general surrender construction of these Federal
statutes has, up to the last few years, been the usual answer when
any answer is sought at all, joining the Arid Land Act of 1877
in support thereof. Thus in Farm etc. Co. v. Carpenter," "If
any consent of the general government was primarily requisite
to the inception of the rule of prior appropriation, that consent
is to be found in several enactments by Congress, beginning with
the act of July 26, 1866, and including the Desert Land Act of
March 3, 1877. Those acts have been too often quoted and are
too well understood to require a restatement at this time at the
expense of unduly extending this opinion."

As in the case just quoted, the reference to these Federal stat-
utes is usually made in a general and indefinite way. The court
says the construction of those acts is too well understood to re-
quire restatement, and yet its reference to them is for a much
broader purpose than that for which the California and similar
courts refer to them. The purport of this new construction may
be summed up as follows : That by the acts of 1866 and 1870 Con-
gress voluntarily declared that rights in waters should be a mat-
ter of local law, for each jurisdiction to declare for itself, and that
the public domain would be disposed of in subordination to such
local system. If the local system ignore Federal proprietorship
in the waters and ignore riparian rights, then such is the system
sanctioned by the Federal government, and as such is conse-
quently binding on the government's grantees of land who would
otherwise have riparian rights. In regard to this construction,
as not only permitting appropriation on the public lands, but
negativing all other rights thereon, and as a general permission
to the Western States to deal with waters as they saw fit, it is an
entire departure from the intent of Congress as shown by the
history of the statutes elsewhere given, and is contrary to an ex-
press decision of the supreme court of the United States,^ though
in accord with the reasoning in some of its later decisions.

In regard to other objections, when the general adoption of
the common law in all the Western States is referred to, it is
replied that the adoption of the common law, if it included the

72 9 Wyo. 110, 87 Am. St. Rep. 73 Sturr v. Beck, 133 U. 8. 541,

918, 61 Pac. 258, 50 L. B. A. 747. 33 L. ed. 761, 10 Sup. Ct. Bep, 350.

9 39

UNITED STATES OB STATE.

sanction of riparian rights, is subject to an implied reservation
to the legislatare to revoke the recognition thereof J*
The **argum€ntum ad haminem'^ is also not lacking/^
Finally, the most recent staud is that the rule of the arid States
IS now one of property, upon which rights of the highest value
have become established, and, right or wrong, must stand as a
rule of property J* Correspondingly the Washington court re-
fused to reopen the correctness of its decisions following the Cali-
fornia doctrine, also on this groundJ^ The Nevada court (in the
case above cited) also suggested that the statute of limitations
would long ago have run against the riparian claimants. The
idea here is entirely similar to that ''silent acquiescence" which
was relied on in the original California cases establishing appro-
priation; such consent of the United States it being necessary
to presume in order to protect private rights that have grown up
to a great value ; and so in Clark v. Nash ^^ it is said that on ac-
count of the large property interests that have grown up under
the Colorado system, it must be upheld. A recent Colorado writer
says: ^ ''In all of the arid States following the 'Colorado system,'
and sustaining the doctrine of appropriation as against the com-
mon-law doctrine of riparian rights, the law has become well set-
tled, and litigants are not inclined to raise nor the courts to listen
to any other contention. Its beneficent results have now been
demonstrated by more than thirty years of continuous practice,
and the property interests that have developed under it now
amount in value to hundreds of millions of dollars."

S 38. Same. — Comparing these objections and these answers,
the Colorado view is close to (in fact, actually) denying that the

•

T^'BoqniUes etc. Go. v. Curtis
(AiiiL), 89 Pac. 604.

^ '^The Oalifoniia deciflioiiB cited
for appellants may no lonffcr be con-
odered good law even in the State in
whieh tbej were rendered. In the re-
ttBt eue of iffciMMMi V. Colorado, be-
fore the sapreme court of the United
StatflB, Congressman Needham testified
.... that there has been a depart-
OR from the principles laid down in
lioz ▼. Haggin, because at that time
the Take of water was not realized;
that the decision has been practically
livened by the same court on subse-
qwnt occasions." Twaddle v. Win-

ters (Nov.), 85 Pac. 280. The coun-
sel who had asserted, the Califor-
nia doctrine was adjudged in con-
tempt of court in another case just
prior to this decision for some ex-
pressions used. Concerning the state-
ment made in the Quotation, see page
40, »upra.

76 Twaddle v. Winters (Nev.), 85
Pac. 280.

77 Nesalhous t. Walker (Wash.), 88
Pac. 1032.

78 198 U. S. 361, 49 L. ed. 1085,
25 Sup. Ct. Rep. 676.

' 79 Mills' Irrigation Manual

84 TEE LAW OF APPROPBIATION. S 40

United States ever had any right to the waters flowing over its
lands ; a doctrine which, in the early California daya when the law
of appropriation arose, would not have been looked upon with
favor. The fullest rights were accorded to the United States in
those days, supporting appropriation npon its generosity solely —
"upon a just and generous government," as Mr, Justice Field
Baid.** The broad construction of the early Federal statutes as
an assent to any system of local law would, however, answer all
the objections {if Congress has power under the constitation of
the United States to surrender the primary disposal of the pub-
lic lands) ; though such a construction, while admissible on the
words of the statutes, is foreign to their history.

But, finally, as a rule, no direct answer is sought. In a gen-
eral ' way, the courts speak, as shown by the quotations, of the
sovereignty of the State as lawmaker having power to declare
or change the law within the State ; without showing why that is
not subject to the constitutional limitations invoked by the Cali-
fornia and other courts,

g 40. Viewi of the Sttpreme Oonrt of the United Statei.— The
decisions of the supreme court of the United States up to Sturr
▼. Beck have been based on the California view, since that was the
historical view, and the opinions were either given by Mr. Justice
Field, who had been most infiuential in shaping the law as Chief
Justice of California, or were based by other justices on his opin-
ions.*' They deraigned the rights of an appropriator fnun the
proprietary rights of the United Stat«s as riparian proprietor of the
public lands. In Atchison v. Peterson, in the course of the opinion
it is observed that "the government being the sole proprietor of all
the public lands, whether bordering on streams or otherwise, there
was no occaaion for the application of the common-law doctrine of
riparian proprietorship in respect to the waters of those
streams" — meaning the streams on the public lands, the waters
of which were subject to appropriation and use under the cus-
toms obtaining among miners. In Basey v. Gallagher,"* the ques-
tion on the merits in the case, as stated by the court, was whether
a right to running waters on public land of the United States for

so JeoDisoD y. Kirk, 98 U. S. 4S3, si Supra, sec. 24.

25 L. ed. 240. 8i» 20 WaU. 670, 22 L. ed. 452.

5 40 UNITED STATES OR STATE. 85

the purposes of irrigation could be acquired by prior appropria-
tion, as against parties not having the title of the government,
and the court held that it could. But the question of riparian
rights was not in the case, and the court said that: '^Neither
party has any title from the United States. No question as to
the rights of riparian proprietors can, therefore, arise. It will be
time enough to consider those rights when either of the parties
has obtained a patent from the government. 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 Sturr v. Beck,®^^ the
question as to the rights of the riparian proprietor as against an
appropriator of the water' did arise, and was determined by the .
court. In that case it appeared that neither Smith nor his gran- /
tee, Beck, had ever diverted the waters of the creek from the
natural channel prior to the location of the alleged water right
by Sturr; but the court unanimously held that Smith's patent re-
lated back to the date of his homestead filing, and cut off com-
pletely the alleged claim of Sturr. The learned chief justice, in
delivering the opinion of the court, after referring to the act of
Congress of July 26, 1866,®^<^ and the amendatory act of 1870,
and quoting frcJm the opinion in Atchison v. Peterson, supra,
said: **When, however, the government ceases to be the sole pro-
prietor, the right of the riparian owner attaches, and cannot be
subsequently invaded. As the riparian owner has the right to
have the water flow ut currere solehaiy undiminished except by
reasonable consumption of upper proprietors, and no subsequent
attempt to take the water only can override the prior appropria-
tion of both land and water, it would seem reasonable that law-
M riparian occupancy with intent to appropriate the land should
have the same effect." And after quoting certain sections of
the Civil Code of Dakota, and setting out the local custom of di-
verting and appropriating the waters of flowing streams for the
purpose of irrigation, he concluded the opinion in the following
language: **Th€ question is not as to the extent of Smith's in-
terest in the homestead as against the government, but whether,
as against Sturr, his lawful occupancy under settlement and en-

*it. 133 U. S. 541. 33 L. ed. 761, sic Bev. Stats., sec. 2339.

l'> Sup. Ct. Bep. 35d.

THE LAW OP APPROPRIATION.

§ 40

try was not a prior appropriation, which Sturr could not dis-
place. We have no doubt it was, and agree with the brief and
comprehensive opinion of the supreme court to that effect. * ' ^^^
This line of decisions deraigns the rights of the appropriator from
the United States, and its theory is based upon the proprietary
rights of the United States as landowner of the public lands.

But the decisions since Sturr v. Beck, while not yet having actu-
ally decided against the right of a riparian proprietor, have shown
a clear determination to uphold the Colorado doctrine in Stat^
that have adopted it. Of these recent Cases in the supreme court
of the United States, the first two were based on the new con-
struction, above stated, of the early Federal statutes. From
United States v. Rio Grande etc. Co.^ we have already quoted
to this effect. But a limitation was at the same time stated,
which points to the California doctrine. ''Although this power
of changing the common-law rule as to streams within its domin-
ion undoubtedly belongs to each State, yet two limitations must
be recognized: First, that, in the absence of specific authority
from Congress a State cannot by its legislation destroy the right
of the United States, as the owner of lands bordering on a
stream, to the continued flow of its waters" ; adding at least as far as
may be necessary for the beneficial uses of the government prop-
erty, and adding a second limitation where the State change of
the common law interferes with the navigability of a navigable
stream.®^ In Gutierrez v. Albuquerque etc. Co.®* the same view,
resting on construction of the early Federal statutes, was taken.
Counsel for appellant had, in their brief, brought up the question
of the relation of appropriators 'to the State or to the United
States, quoting Lux v. Haggin, and in this connection the fol-
lowing passage may be of importance. The court said: **The
contentions urged upon our notice substantially resolve them-
selves into two general propositions: First, that the territorial
act was invalid, because it assumed to dispose of property of the
United States without its consent; and, second, that said stat-
ute, in so far, at least, as it authorized the formation of corpora-

8id See Benton ▼. Johncox, 17
Wash. 277, 61 Am. St. Rep. 912, 49
Pac. 498, 39 L. B. A. 107, discuBsing
this line of the decisions.

«2 174 U. S. 690, 43 L. ed. 1136,
19 Sup. Ct. Bep. t70.

83 United States ▼. Bio Grande D. 4
I. Co., supra.

w 188 U. 8. 545, 47 L. ed. 588, 23
Sup. Ct. Rep. 338.

S 40 UNITED STATES OB STATE. 87

tions of the character of the complainant, was inconBistent with
the legislation of Congress and therefore void. These proposi-
tions naturally admit of consideration together. The argument
in support of the first proposition proceeds upon the hypothesis
that the waters affected by the statute are public waters, the prop-
erty, not of the Territory or of private individuals, but of the
United States; that by the statute private individuals, or cor-
porations, for their mere pecuniary profit, are permitted to ac-
quire the unappropriated -portion of such public waters, in vio-
lation of the right of the United States to control and dispose
of its own property wheresoever situated. Assuming that the
appellants are entitled to urge the objection referred to, we think,
in view of the legislation of Congress on the subject of the ap-
propriation of water on the public domain, particularly referred
to in the opinion of this court in United States v. Bio Grande
Dam and Irr. Co.,^ the objection is devoid of merit. As stated
in the opinion just referred to, by the act of July 26, 1866,^
Congress recognized, as respects the public domain, 'so far as the
United States ace concerned, the validity of the local customs,
laws, and decisions of courts in respect to the appropriation of
water.' "

But in this case the court takes pains to' point out that the rights
of riparian proprietors were not involved, and again place a limit
on its decision which resembles the California doctrine, saying : ^
'*0f course, as held in the Rio Grande case,^ even a State, as re-
spects streams within its borders, in the absence of specific au-
thority from Congress, 'cannot, by its legislation, destroy the
right of the United States, as the owner of lands bordering on a
stream, to the continued flow of its waters; so far, at least, as
may be neces&ry for the beneficial uses of the government prop-
erty'; and the power of a State over navigable streams and their
tributaries is further limited by the superior power of the gen-
eral government to secure the uninterrupted navigability of all
navigable streams within the limits of the United States. Nec-
easarily, these limitations are equally applicable in restraint of

» 174 U. 8. 704-706, 43 L. ed. 87 italics ours.

1142, 1143, 19 8np, Ct. Bep. 770. 88 Page 703, L. ed. 1141, Sup. Ct.

» 14 Stats, at Large 253, e. 262, Rep. 775.
lee. 9; Bev. Stats., 2339; U. S. Comp.
Btats. 1901, p. 1437.

THE LAW OP APPEOPEIATION.

§ 40

the legislative branch of a territorial government, controlled, as
is such body, by Congress. // we assume that a resttictuyn on the
power of a Territory similar to that first stated prevails in favor
of private owners of lands along a running stream, the act in
question clearly is not violative of such rights, for the same does
not attempt to authorize an infringement of them. The water
which it is provided may be appropriated is 'surplus' water, ot
any stream, lake, or spring, and it is specifically provided in sub-
division 4 of section 17 of the act 'That no water shall be diverted.
if it will interfere with the reasonable requirements of any per-
son or persons using or requiring the same when so diverted.^
So, also, in section 25, it is declared 'that no incorporation of any
company or companies shall interfere with the water rights of
any individual or company acquired prior to the passage of this
act.' The finding of the court helow that 'surplu^s' water ex-
isted negates the idea that any legitimate appropriation of water
which can be made by the appellee can in anyuHse violate the
rights of others/' This is an express reservation that the de-
cision shall not affect the question of riparian rights, and it re-
asserts the proprietary rights of the United States, at least so
far as concerns government reservations,®^ which exception has been
actually enforced with regard to waters flowing through an Indian
reservation.®^

There are two other decisions of the supreme court of the United
States also basing the Colorado view on a construction of the
early Federal statutes. Referring to these statutes it is said:
"The government enacts that anyone may go upon its public
lands for the purpose of procuring water, digging ditches for
canals, etc., and when rights have become vested and accrued
which are recognized and acknowledged by the local customs,
laws, and decisions of courts, such rights are acknowledged and
confirmed, ' ' ®^ and that hence the validity of appropriation is by
these Federal statutes made a question of State law.^

80 As to which exception both these
cases were relied on and applied in
United States v. Conrad Inv. Co.
(Or.), 156 Fed. 126 — an Indian reser-
vation. See infra, sec. 74.

00 Winters v. United States, 207 U.

8. 564, 52 L. ed. , 28 Sup. Ct.

Eep. 208.

01 Bear Lake etc. Co. v. Garland,
164 U. 8. 1, 41 L. ed. 327, 17 Sup. Ct.
Rep. 7.

02 Telluride etc. Co. v. Rio Grande
etc. Co., 175 U. 8. 639, 44 L. ed. 305,
20 Sup. Ct. Rep. 245, 187 U. 8. 579,
47 L. ed. 307, 23 Sup Ct. Rep. 178.

§ 41 UNITED STATES OE STATE. 89

These decisions, consequently, still recognize the proprietary
rights of the United States as involved in determining the rights
of an appropriator ; but consider that Congress itself has legislated
inimically to riparian rights.

§ 41. Some. — Of the latest cases in this highest tribunal, two
look to the support of the Colorado doctrine, not as a matter of con-
struction of the Federal statutes (as in the foregoing decisions), but
adopting the full contention of the cases at large in the arid States,
passing by these statutes and the question of Federal proprietorship,
and regarding State control over the law of waters as a power in-
herent in its sovereignty, whether the waters now or in the past
flowed over public lands or not. To this effect is Clark v. Nash,®^
saying (by way of dictum only, since a point in the law of eminent
domain alone was decided) : ''The rights of a riparian owner in
and to the use of the water flowing by his land are not the same
in the arid and mountainous States of the West that they are in
the States of the East. These rights have beeu altered by rnanj'
of the Western States by their constitutions and laws, because
of the totally different circumstances in which their inhabitants
are placed, from those that exist in the States of the East, and
such alterations have been made for the very purpose of there-
by contributing to the growth and prosperity of those States,
arising from mining and the .cultivation of an otherwise valueless
soil, by means of irrigation. This court must recognize the dif-
ference of climate and soil, which render necessary these different
laws of the States so situated. ' ' ^

To the same effect, treating the question as one of sovereignty
of the State as lawmaker and passing by any consideration of the
position of the United States as landowner; regarding the ques-
tion, in other words, as one of sovereignty and not of proprietor-
ship, is the opinion in Kansas v. Colorado.^ The early Federal
statutes of 1866 and 1870 ^ and those following them were not
even cited in the opinion. This very important decision was
given May 13, 1907, Mr. Justice Brewer writing the opinion. In
actual decision it held against the Federal claims set up in be-
half of the Reclamation Service, holding that the rights of sov-

« 198 U. 8. 361, 49 L. ed. 1085, 25 95 206 U. 8. 46, 51 L. ed. 956.

Sap. Ct Bep. 676. 96 Rev. 8tat8., 2339, 2340.

»* Clark V. Nash, 198 U. 8. 361, 49
L. «1. 1085, 25 Sup. Ct. Rep. 676,

THE LAW OP APPEOPBIATION.

I 41

ereignty of the United States with respect to the pablic domain
within States are subordinate to State sovereignty with respeet
to the law of waters, and rejected the Federal claim as one of
sovereignty not delegated to it expressly by the Federal constitu-
tion, and the Federal government is one of enumerated powers
only. No reference whatever was made to Federal rights on the
ground of proprietorship, thereby ignoring the theory on which
the California doctrine rests.

Aside from the claims of the reclamation service, the court in
Kansas v. Colorado refused to decide the issue on the law of
waters. Kansas, as a State where the law of riparian rights was
in force, sought to enjoin Colorado from itself diverting, and
permitting private appropriators to divert, in Colorado, the waters
of the Arkansas river, which flowed from Colorado into Kan-
sas, and the decision as between the two States was merely that
Kansas had not shown such irreparable damage as is requisite
for injunction; thereby deciding a principle of equity between
States (** equitable apportionment of benefits between States"),
as transcending the question of the validity of the Colorado sys-
tem of water laws. But the language and reasoning is all based
on the extremest form of the Colorado view, viz.: that a State
by virtue of its sovereignty may provide its own system of water
laws.***

Federal rights were considered entirely from the view of sov-
ereignty and as such recognized as to Territories but denied as
to States. Federal rights based on proprietorship aside from
sovereignty were given no consideration; or rather, the distinc-
tion at the bottom of Lux v. Haggin, between the United States
as landowner on one hand, and lawmaker on the other, was not
made a part of the opinion. Viewing the rights of the United
States solely from the point of view of sovereignty it was held
that: **But it is useless to pursue the inquiry further in this di-
rection. It is enough for the purpose of this case that each State
has full jurisdiction over the lands within its borders, including
the beds of streams and other waters It may determine

06a See Hudson W. Co. ▼. McOarter
(U. S. Sup. Ct.), April 6, ia08, hold-
ing that the right of a State to legis-
late upon waters, within proper limits,
outweighs, under the police power, all

property * rights therein. The
arose in New Jersey, and Mr. Justice
Holmes says: ''The problems of irri-
gation have no place here."

§ 41

UNITED STATES OE STATE.

for itself whether the common-law rule in respect to riparian
rights or that doctrine which obtains in the arid regions of the
West, of the appropriation of waters for the purposes of irriga-
tion, shall control. Congress cannot enforce either rule upon
any State." Adding that the power of the State to legislate
upon waters was an incident to the full sovereignty with which
it was admitted into the Union.^

Kansas v. Colorado has joined with Clark v. Nash in uphold-
ing the view of the plenary legislative power of a State over
waters, as an incident of sovereignty, without resort -to (in fact,
if need be, in spite of) any Federal statutes, or Federal consent.
It is in absolute opposition to the theory of Lux v. Haggin regard-
ing the proprietary rights of the United States and the primary
disposal of the public lands. Yet still it does not conclude the
question, because the final decision did not pass upon the valid-
ity of the Colorado laws, but left that open to later litigation if
Kansas could hereafter show sufficient damage ; and because the
earlier decisions up to Sturr v. Beck, and the many State de-
cisions affirming Lux v. Haggin, were entirely ignored, and no
attempt was made to consider or rebut the theory on which they
all rested, viz. : that of Federal proprietorship of the public lands,
and right to waters thereon, as distinguished from the Federal law-
making power or sovereignty. It is not conclusive because it
considered the matter as an original one, ignoring all historical
considerations of its origin and development, and because in
Winters v. United States'® the supreme court of the United
States, while holding it unnecessary to decide whether riparian

^ In a case involvinff title to an
isUnd in a stream in Nebraska, the
Bopreme court of the United States
aid, in Whitaker v. McBride. 197 U.
S. 510, 49 L. ed. 857, 25 Sup. Ct.
Bep. 510: "The decision of the su-
pTpme court of the State was that the
owner of lands bordering on a river
owDB to the center of the channel, and
takes title to any smaU bodies of
land on his side of the channel that
have not been surveyed or sold by the
Soremment. It is the settled rule
that the question of the title of a
riparian owner is one of local law.
In Hardin v. Jordan, 140 XT. S. 371,
35L. ed. 428, 11 Sup. Ct. Bep. 808,
the matter was discussed at some

length, the authorities cited, and the
conclusion thus stated by Mr. Jus-
tice Bradley, delivering the opinion
of the court (page 384) : * Iji our
judgment the grants of the govem-
men|» for lands bounded on streams
and other waters, without any reser-
vation or restriction of terms, are to
be construed as to their effect accord-
ing to the law of the State in which
the lands lie.' "

This was said, however, in a case
concerning title to an island, in a
stream in a State where riparian
rights were upheld, and the words
were used in a different connection
from that which we are discussing.

06 28 Sup. Ct. Bep. 208.

THE LAW OF APPROPRIATION.

§ 42

rights exist in Montana, again returned to the reasoning of the
California doctrine denying the plenary power of the State.
**The power of the government to reserve the waters and exempt
them from appropriation under the State laws is not denied,
and could not be." To this Mr. Justice Brewer, who wrote
the opinion in Kansas v. Colorado, was, of course, forced to dis-
sent.

In view of Clark v. Nash and Kansas v. Colorado, the attitude
of the supreme court of the United States is to uphold the Colo-
rado view in any State that has so far adopted it; but these de-
cisions must still be reconciled with the early ones up to Sturr
V. Beck ; and the theory of the law in Lux v. Haggin still remains
unanswered. The test will probably come with regard to States
which have gone over from one doctrine to the other recently,
or which do so hereafter.^

§ 42. Some Inconsistencies. — Some of the decisions of the arid
States follow the California view so far as it holds appropria-
tion to rest in grant from the United States,^^ though usually it
is seen that this leads to difficulty under the Colorado view.
Again, there are decisions in these jurisdictions, actually apply-
ing the California view and enforcing riparian rights.^®^ In
Colorado, as hereinafter discussed in considering ** preferences

99 It may not be without bearing
that the opinion in Kansas v. Ck)lo-
rado was given at a time when there
was much agitation over a revival
of * ' State Rights ' ^ discussion, brought
about by President Roosevelt ^s ad-
vocacy of Federal control of rail-
ways, insurance and similar matters;
his attempt to exercise State func-
tions indirectly by the Federal treaty-
making power in his attempt to coerce
California in the conduct of its pub-
lic schools with regard to the admis-
sion of Japanese therein. The su-
preme court (and Mr. Justice Brewer
especially) was thought to be out of
sympathy with the President's cen-
tral^ation principles. The Kansas
V. Colorado decision is meant to be in
favor of '* State Rights"; but the
question involves other considerations
of proprietorship aside from sover-
eignty which the California doctrine

considers really takes the question
out of the '*Stat« Bights" discus-
sion.

100 e. g., Welch v, Garrett, 5 Idaho,
639, 51 Pac. 405.

101 Thus, Schwab v. Beam, else-
where quoted (sec. 110), in the Fed-
eral court for Colorado, and the fol-
lowing in the supreme court of Utah;
saying that after an entry of land
by pfiiintiff's grantors "there could
be no appropriation of the water or
right of way for the ditch across
plaintiff's land without his consent
or that of his grantors. The entry
of the land by pdintiff was an appro-
priation of not only the land, but of
the water; and any person entering
upon the land thereafter became a
trespasser.'* Stalling v. Perrin,
7 Utah, 477, 27 Pac. 686. citing Sturr
V. Beck, 133 U. S. 541, 33 L. ed. 761,
10 Sup. Ct. Rep. 350.

9 43

UNITED STATES OE STATE.

and prorating/' it seems to be the law of the State court that
the common law of riparian rights governs so far as the use of
water for domestic purposes is concemed.^^ Again, the very
earliest statntes of several of these Slates contained a provision
that all landowners on the banks of a stream have a right to the
use of the water.^^ This was probably intended as declaratory
of riparian rights, to the same end as the California provision,
'*The rights of riparian proprietors are not affected by the pro-
visions of this title." Such a statute existed in Montana, and
Chief Justice Wade ^^ construed it as only declaratory of riparian
rights. And in South Dakota and Washington the same pro-
vision was so construed, and held to force the court to follow
the California doctrine.^^

On the other hand, the California court has recently used ex-
pressions similar to those of the Colorado court as to the question
being one of sovereignty, irrespective of public land law.^^ Also,
the supreme court of the United States continues to waver be-
tween the two theories.

§ 43. Oonolnsion. — The Western States are divided into two
classes, one basing its theories on the proprietorship of the United
States in the public domain, deraigning the rights of the appro-
priator as a grant from the United States, and recognizing the
common law of riparian rights side by side with the law of ap-
propriation; the other deriving the rights of the appropriator
from the State and recognizing no law of waters but that of
appropriation. The former, the California system, is in force in
California, Oregon, Washington, Montana (probably). North
Dakota, South Dakota, Nebraska, Oklahoma (possibly), Texas
and Kansas.^^ The latter, the Colorado doctrine, is in force in
Colorado, Arizona, Idaho, New Mexico, Nevada, Utah and Wyom-

i« MontTOte etc. Co. v. Loutsen-
Uzar, 23 Colo. 233, 48 Pac 532;
Broadmoor etc. Co. v. Brookside etc.
Co., 24 Colo. 541, 52 Pac. 792, con-
itming Colo. Const., art. 16, sec. 6;
«» infra, sec. 51.

»«3 Ante, sec. 23.

»w Thorp V. Freed, 1 Mont. 651, in
& maeh better opinion on this statute
than that of Judffe Knowles.

iw Lone Tree Co. v. Cyclone Co.,
15 8. Dak. 519, 91 N. W. 354; Ben-

ton V. Johncoz, 17 Wash. 277, 61 Am.
St. Rep. 912, 49 Pac. 495, 39 L. B. A.
107.

108 See Duckworth v. Watson-
▼ille W. Co., 150 Cal. 520, 89 Pac.
338; Katz v. Walkinshaw, 141 Cal.
116; Los Angeles v. Los Angeles etc.
Co. (Cal. Sup.) 93 Pac. 869, the last
saying the whole question of the
rights of riparian owners is one of
local law.

lOT Ante, sec. 22,

H THE LAW OF APPBOPBIATION. i 43

ing.*^ The doctrine of the latter States is that the qnestion is
one of local law, without regard to Federal proprietorship, be-
coming a matter of loeal law by a broad construction of the
early Federal statutes which departs from the history of those
statutes but is otherwise possible ; or becoming a matter of loeal
law as inhering in State sovereignty regardless of Federal stat-
utes, a position which the courts following the California doc-
trine have attacked as open to constitutional objections, but which
(without considering the objections) finds favor in the most re-
cent decisions of the supreme court of the United States and h
found in some recent expreasions of the California court itself.
The recent decisions of the supreme court of the United States,
and the great value of property in the arid States relying on the
Colorado doctrine, leave no doubt that the system has come to
stay in any State that haa to-day adopted it; though a certain
qualified reservation of Federal proprietary rights, so far at least,
as is necessary to the beneflcial uses of government property, and
for Indian reservations, is still steadily asserted in the United
States supreme court's decisions. In so far as the Colorado doc-
trine is rested on the early Federal statutes, those statutes by
their indeflnttenesB, dne to the peculiar circomstances under wbich
passed, vre responsible for this conflict, since they then have left
room for such fundamentally different constructions. "Had the
government of the United States taken as much pains in dis-
posing of the waters of the public domain in aa uniform and sys-
tematic a manner as it did of the public lands in the arid region,
over which those waters run, 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."**"

Aside from this difference in the present derivation of the
rights of the appropriator, and in the consequent attitude toward
riparian rights, the substantive law of appropriation itself is the
same under both systems. Its characteristics, extent of right, loss
of right, and similar matters,*'" are founded upon the early Cali-

108 Ante, BM. 23. of, it is the rasult of th« same eon-

iiM Kinney on Inigstioa, see. 272. ditions, and rerta upon the mmt

See, also, Long on Irrigation, see. 24. practical bam." WiUey v. Deekv,

no "Whether adopted in Ueu o( or 11 Wyo. 496, 100 Am. 8t. Rep. 839,

M a aubititute for the common law 73 Pae. 210.

or merely as a modification there-

S 43 UNITED STATES OE STATE. 95

fomia decisions; California being the spring from which this
peculiar feature of Western law has come. The decisions of that
eourt in the earlier days seldom failed to be quoted in the other
Western States in this connection, and its early cases had every-
where a persuasive force that closely approached authority. The
substantive law of appropriation is largely the same under both
systems, though in some States — chiefly, the arid States — ^recent
statutory codes of administrative law have been added that are
absent in the rest.

THE LAW OF APPEOPEIATION.

8 44

CHAPTER III.

NATURE OP THE RIGHT OP APPROPRIATION.

A. RELATION BETWEEN APPBOPELA.TORS.

S 44. Priority governs.

9 45. Same — ^Whole stream. • ^

§ 46. Same— In times of deficiency.

9 47. Successive appropriations.

§ 48. Periodical appropriations.

9 49. Temporary appropriations.

9 50. No partisdity.

9 51. Preferences and pro-rating.

9 52. Same — Pro-rating.

B. RELATION TO BIPABIAN PBOPBIETOB8.
9 53. To subsequent settlers.

9 54. To prior settlers.

9 55. Same.

9 56. Prior settlers who hold the land in fee.

9 57. Prior settlers before patent.*^

9 58. Conclusions.

C. CHABACTEBISTICS.

§ 59. The right is usufructuary.

9 60. No property in the ^* corpus,**

9 61. No properly in the channel.

a 62. The right is exclusive.

§ 63. Independent of ownership or possession of land.

9 64. Distinguished from right to a ditch.

9 65. Real estate.

9 66. Historically based on possession.

9 67. Conditional.

9 68. An incorporeal hereditament.

9 69. Definition.

A. RELATION BETWEEN APPBOPBIATORS.

§ 44. Priority Oovems. — Upon the theory on which the law of
appropriation arose, and what is still the theory of the California
doctrine, several appropriators on the same stream bear to each
other the relation of successive grantees of parcels of one or-
iginal holding, namely, of the sole right to the waters held by the
United States as original oyrner. Like successive grants between
private parties, where they conflict, the later one can hold only
what was left after the earlier one was made. The maxim, **Qui
prior est in tempore, portior est injure,*' is continually quoted in
the early cases upon this subject as governing; a maxim drawn
from the law of successive grants of real estate between private

NATUBE OF THE BIGHT OP APPBOPBIATION.

p urties who took from the same owner subject to the possession
of a prior grantee.

Upon the theory of the Colorado doctrine, priority governs be-
cause the waters are publici juris, and the possession of the first
taker gives a good title thereto against later comers on the prin-
ciple that prior possession thereof is the only source of title.
That priority gives the better right sometimes appears in the con-

■

stitutions of the arid States.^

That priority governs is a fundamental principle of the law
of appropriation.^

1 B. g., Colo. GooBt., art. 16, sec. 6;
^70. Const., art. 8, sec. 3.

2 AUuka. — (For mining) Bevenue
etc. Co. y. Balderston, 2 Alaska, 363.

California. — ^Irwin v. Phillips, 5
Cal 140, 63 Am. Dec. 113; Conger
▼. Weaver, 6 Cal. 548, 65 Am. Dee.
528; Tennev y. Miners' Ditch Co., 7
Cal 335; Thompson v. Lee, 8 Cal.
275; Marina y. Bieknell, 10 Cal. 217;
Kimball y. Qearhart, 12 Cal. 27;
Ortmon v. Dixon, 13 Cal. 33; McDon-
ald t. Bear Biyer Co., 13 CaL 220;
Esmond y. Chew, 15 Cal. 137; Kidd
T. Laird, 15 Cal. 161, 76 Am. Dec.
472; Logan y. DriscoU, 19 <M. 623, 81
Am. Dee. 90; McKinney y. Smith, 21
CaL 374; Phoenix Water Co. v. Flet-
cher, 23 CaL 481; Wutchnmna etc.
Co. 7. Poffue, 151 CaL 105, 90 Pac.
862. ^ '

Colorado. — Saint y. Gnerrerio, 17
Colo. 448, 31 Am. St. Bep. 320, 30
Pae. 335; Coffin y. Left-Hand D. Co.,
6 Colo. 443; Thomas y. Guirand, 6
Colo. 530; E^mmond y. Bose, 11 Colo.
524, 7 Am. St. Bep. 258, 19 Pac. 466 ;
Armstrong y. Larimer etc. Co., 1 Colo.
App. 49, 27 Pac. 235; Strickler y.
City, 16 Colo. 61, 25 Am. St. Bep. 245 ,
26 Pec. 318; Ft. Morgan Co. y. So.
Platte D. Co., 18 Colo. 1, 36 Am. St.
Bep. 259, 30 Pac. 1032; Bloom y.
Wert, 3 Colo. App. 212, 32 Pac. 846 ;
Cobrado Mill etc. Co. y. Larimer Irr.
Co., 26 Cok). 47, 56 Pac. 185; Cache
U Poudre Co. v. Water Sup. Co., 27
Colo. 532, 62 Pac. 420; Fnlton etc.
Co. T. Meadow etc. Co., 35 Colo. 588,
86 Pkc. 748; Baer etc. Co. y. Wilson
38 Colo. 101, 88 Pac. 265; Const., art.
16, tec 6.

/doAo.— Malad Val. Irr. Co. y.
Campbell, 2 Idaho, 378, 18 Pac. 52;

Water Rights— 7

Kirk y. Bartholomew, 2 Idaho, 1087,
29 Pac. 40; Krall y. United States, 79
Fed. 241, 24 C. C. A. 543; Dunniway
y. LawBon, 6 Idaho, 28, 51 Pae. 1032;
Moe y. Harger, 10 Idaho, 302, 77 Pac.
645.

Kansas, — Gen. Stats., sec. 3501.

Montana, — Thorp y. Freed, 1 Mont.
651; Alder Gulch etc. Co. y. Hayes, 6
Mont. 31, 9 Pac. 581; Quigley y.
Birdseye, 11 Mont, 439, 28 Pac. 741;
Toohey y. Campbell, 24 Mont. 13, 60
Pac. 396.

Nevada, — ^Lobdell y. Simpson, 2
Nev. 274, 90 Am. Dec. 537; Barnes y.
Sabron, 10 Ney. 217; Chiatorich y.
Dayis, 17 Ney. 133, 28 Pac. 239; Beno
Smelting Co. y. Steyenson, 20 Ney.
269, 19 Am. St. Bep. 364, 4 L. B. A.
60, 21 Pac. 317: Union MiU Co. y.
Dangberg (Ney.), 81 Fed. 73; Ennor
y. Baine, 27 Ney. 178, 74 Pac. 1 ;
Twaddle y. Winters (Ney.), 85 Pac.
284.

New Mexico, — Millheiser y. Long,
10 N. Mex. 99, 61 Pae. Ill; Albu-
querque Irr. Co. V. Gutierrez, 10 N.
Mex. 177, 61 Pac. 357, S. C, 188 U.
S. 545.

Oregon, — McCall y. Porter, 42 Or.
49, 70 Pbc. 820, 71 Pac 976; Neyada
etc. Co. y. Bennett, 30 Or. 59, 60
Am. St. Bep. 777, 45 Pac. 472; Mann
V. Parker, 48 Or. 321, 86 Pae. 598.

South Dakota,— Bt&U, 1905, p. 201,
sec. *s.

Utah, — Hague y. Nephi Irr. Co., 16
Utah, 421, 67 Am. St. Bep. 634, 41 L.
B. A. 311, 52 Pac. 765; Herriman
Irr. Co. V. Bntterfield M. Co., 19 Utah,
453, 57 Pac. 537, 51 L. B. A. 930;
Salt Lake City y. Salt Lake etc. Co.,
24 Utoh, 249, 67 Pac. 672, 61 L. B. A.
648, 25 Utah, 456, 71 Pac. 1069.

THE LAW OP APPEOPBIATION.

SS 45,46

An appropriation, however, cannot claim priority merely by
complying with an unconstitutional statute concerning maps and
filings.^

§ 45. Same — ^Whole Stream. — If for a beneficial purpose, one
may hence appropriate a whole stream. An appropriation is lim-
ited to beneficial use, but may absorb a whole stream to that end.^
** Under such doctrine the first appropriator may appropriate the
entire flow of a stream, if used in proper irrigation.*^ Also, a
non-riparian owner may appropriate and get an exclusive right
to the whole water of a stream for non-riparian lands. "^ An-
other says: "Beyond question, under our laws (Idaho), a party
may be protected in the use of all the water he actually appro-
priates and uses, even if it be every drop that flows in as great
a river as the Snake.'' ^

§ 46. Some — ^In Times of Deficiency .^In times of natural or
other deficiency, also, unless otherwise provided by statute, the
prior appropriator may still claim his full amount ; the loss must
fall on the later appropriators. In a case enforcing an appro-
priation to the extent of seventy-five p6r cent of the whole
stream,® it is said: **It further appears from this defense that at
certain seasons of the year the flow of the stream will only supply
the needs of the defendants. It appears, therefore, from the
averments of this defense, that the defendants have a prior right
to the use of the water from the natural stream, and, when low,
to the entire volume thereof, and the demurrer thereto should
have been overruled." This is true even where unusual scarcitv
or dry season causes the deficiency.® This is in marked contrast

Wyoming, — ^Moyer v. Preston, 6
Wyo. 308, 44 Pac. 845; Willey v.
Decker, 11 Wyo. 496, 100 Am. St.
Rep. 939, 73 Pac. 210; Const., art. 8,
sec. 3.

SeCj cUsOf Pomeroy on Riparian
Rights, sec. 15.

3 Lamar etc. Co. v. Amity etc. Co.,
26 Colo. 370, 77 Am. St. Rep. 261, 58
Pac. 600; Great Plains etc. Co. v.
Lamar etc. Co., 31 Colo. 96, 71 Pac.
1119; Mohl V. lamar Canal Co., 128
Fed. 776.

4 Bolter V. Garrett, 44 Or. 304, 75
Pac. 143; Malad etc. Co. v. Campbell,
2 Idaho, 411, 18 Pac. 52; Moe v. Har-
ger, 10 Idaho, 302, 77 Pac. 645.

6 Citing Hammond v. Rose, 11
Colo. 524, 7 Am. St. Rep. 258, 19
Pac. 466; Drake v. Earhart, 2 Idaho,
750, 23 Pac. 541.

6 Meng V. Coffey, 67 Neb. 500, 108
Am. St. Rep. 697, 93 N. W. 715, 60
L. R. A. 910.

7 Trade etc. Co. v. Eraser, 148 Fed.
587.

8 Wellington v. Beek, 30 Colb. 409.
70 Pac. 687.

9 Ibid, and Huning v. Porter, 6
Ariz. 171, 54 Pac. 584; City of Tel-
luride v. Blair, 33 Colo. 353, 80 Pac
1053. Compare Brown v. Smith, 10
<^L 508.

§47

NATUBE OP THE BIGHT OF APPROPRIATION.

to the doctrine of riparian rights, where all claimants have an
equal right, and, in time of deficiency, the water would be ap-
portioned among them.^^

These possible results have been frequently urged as argu-
iments against the doctrine of appropriation,^^ saying that the •
enforcement of appropriation may well work for the benefit of a
few against many, but must be enforced nevertheless,^^ and it is
said that appropriation is a selfish system. In Anderson v. Bass-
man,*^ Judge Morrow apportioned the water instead of enforc-
ing the priorities, but the case is not well reasoned,- and ignores
this essential feature of the law of appropriation in order to reach
substantial justice, which was found inconsistent with a strict
enforcement of priorities.**

In Colorado and some other States, however, the appropriators
will be forced, under some circumstances, to pro-rate, by statute,
and priority is given in those States in times of scarcity to those
using the water for domestic purposes ; next to those using it for
irrigation, as discussed in the next section and elsewhere.

§ 47. Successive Appropriations. — ^It is well settled that, sub-
ject to the rule of priority, later comers may make appropria-
tions, each later comer in succession being required to respect
the appropriations of all who came before him. Later appropria-
tions may be made of the surplus over what has been appro-
priated by prior appropriators, or of any use that does not ma-
terially interfere with prior appropriators.^*^ In the cases in

w Infra, seca. 52, 426, 427.

Kinney on Irrigation, section 225,
ays that one may claim his fuU ap-
propriation although he entirely
shuts off the supply of subsequent
appropriators, and that "this may
seem a selfish rule to one who is ac-
(piainted with only the principles of
the common law upon the subject, but
it is based upon the general and uni-
form principle applicable to all
elaims by appropriation to waters
apon the public domain of the arid
West that 'he who has the prior has
the superior right. ' ' ' See, also, sees.
173, 229, 240; Sayre v. Johnson, 33
Mont. • 15, 81 Pac. 389 ; Kirk v.
Bartholomew, 3 Idaho, 367, 29 Pac.
40; and the emphatic opinion in Hill-
man V. Hardwick, 3 Idaho, 255, 28

Pac. 438 ; Long on Irrigation, sec.
57.

11 E, g,. Cave v. Tyler, 133 Cal.
566, 65 Pac. 1089; Morris v. Bean,
146 Fed. 425.

12 Morris V. Bean, 146 Fed. 425.
See, also. Thorp v. Freedl 1 Mont.
651.- • - •

18 C. C. Cal., N. Dist., 140 Fed. 14.

14 In 6 Current Law, 1859, An-
derson V. Bassman is commented upon
as questionable, ''and finds explana-
tion only in the desire to curtail the
doctrine of appropriation so as to
permit irrigation of the greatest
possible area." Accord 19 Harv.
Law Eev. 475, note.

16 Cases cited above; also, Nevada
Water Co. v. Powell, 34 Cal. 109, 91
Am. Dec. 685; Higgins v. Barker, 42
Cal. 233; Junkans v. Bergin, 67 Cal.

100

THE LAW OF APPROPRIATION.

S 47

the following note the prior appropriator was protected from the
acts of a subsequent appropriator* which injured him,^* while in
the cases in the next note the subsequent appropriator was pro-
tected from unlawful acts of the prior appropriator, the subse-
quent appropriator 's right to surplus over the prior appropria-
tion being protected.*^

Among the successive appropriators each is in the position of
a prior one toward all who are subsequent to himself.^® The sub-
sequent appropriator is entitled to the surplus, and any attempt
of the prior appropriator to make a sale of such surplus to some-
one else to the injury of existing appropriators, though subse-
quent, is of no avail.^® The prior cannot charge* the later one
for use of the water.^ The prior appropriator is limited to the
quantity appropriated by him at the time of the subsequent ap-
propriation, and cannot thereafter take an increased quantity;^
but an increase of mill capacity^ or an increase of acreage ir-
rigated does not necessarily per se show the use of more water;
it may merely show greater efficiency of the use of the same
water.^ A subsequent appropriator has a vested right as
against his senior to insist upon the continuance of the condi-

267, 7 Pac. 684; Edgar v. Stevenson,

70 Cal. 286, 11 Pac. 704; Barrows v.
Fox, 98 Cal. 63, 32 Pac. 811; Na-
toma etc. Co. v. Hancock, 101 Cal.
42, 31 Pac. 112, 35 Pac. 334; Santa
Paula Water Co. v.- Peralta, 113 Cal.
38, 45 Pac. 168; Senior v. Anderson,
115 Cal. 496, 47 Pac. 454; Smith v.
Hawiuns, 120 Cal. 86, 52 Pac. 139:
Senior v. Anderson, 130 Cal 290, 62
Pac. 563; Moe v. Harger, 10 Idaho,
302, 77 Pac. 645; Mann v. Parker
48 Or. 321, 86 Pac. 598; McCall v.
Porter, 42 Or. 49, 70 Pac. 820, 71 Pac.
976; Salt Lake City v. Salt Lake
etc. Co., 24 Utah, 249, 67 Pac. 672,
61 L. B. A. 648, 25 Utah, 456, 71
Pac. 1069.

i« Cache Ia Poudre etc. Co. v.
Water Supply etc. Co., 25 Colo. 161,

71 Am. St. Bep. 131, 53 Pac. 331,
46 L. B. A. 175; Dunniway v. Law-
son, 6 Idaho, 28, 51 Pac. 1032; Salt
Lake City v. Salt Lake etc. Co., 24
Utah, 249, 67 Pac. 672, 61 L. B.
A. 648; Morris v. Bean, 123 Fed. 618.

17 Saint V, Guerrerio, 17 Colo. 448,
31 Am. St. Bep. 320, 30 Pac. 335;
Alder Gulch etc. Co. v. Hayes, 6
Mont. 31, 9 Pac. 681; Quigley v.

Birdseye, 11 Mont. 439, 28 Pac. 741;
Barnes v. Sabron, 10 Nev. 217; Union
etc. Co. V. Dangberg, 81 Fed. 73;
Mann v. Parker, 48 Or. 321, 86 Pac
598.

18 Pomeroy on Biparian Bights, see.
83; Kinney on Irrigation, see. 173 et
seq.

19 Johnston v. Little Horse Creek
Co., 13 Wyo. 208, 110 Am. St. Bep.
986, 79 Pac. 22, 70 L. B: A. 341;
Creek v. Bozeman Water Co., 15
Mont. 121, 38 Pac. 459.

20 Mann v. Parker, 48 Or. 321, 86
Pac. 598.

21 Butherford y. Lucerne ete. Co.
(Colo.), 75 Pac. 445; Taughenbangh
V. Clark, 6 Colo. App. 235, 40 Pac
153; Toohey v. Campbell, 24 Mont
13, 60 Pac. 396.

22 Union Min. Co. v. Dangberg, 81
Fed. 73.

23 Cache La Poudre etc. Co. v. Lar-
imer ete. Co., 25 Colo. 144, 71 Am.
St. Bep. 123, 53 Pac. 318; Platte
Valley etc. Co. v. Central Tn^it Co..
32 Colo. 102, 75 Pac. 391; Folton etc
Co. V. Meadow, etc. Co., 35 Colo. 588,
86 Pac. 748.

I 47 NATURE OF THE BIGHT OF APPBOPBIATION. 101

tions that existed at the time he made his appropriation.^ The
independence of the appropriators inter se is shown by the de-
cision that where a majority of users on a stream incoi^orate,
they have no right to regulate the use of the minority who do
not come into the corporation.^

Some quotations expressing the rule of successive appropria-
tion may be added. A prior appropriator's right ** extends only
to the water actually taken and used. The consequence is that,
80 far as the protection of this right, and the water necessary to
supply this use, are concerned, the water company is not entitled
to prevent an appropriati'on or use by others of the surplus of
the waters of the lake, if there is any. So long as there is enough
to supply it with the quantity of water which it has been so
using, it has, in the protection of this right, no concern with the
disposition of the remainder. It has the right, of course, to in-
sist upon a reasonably ample quantity to last through the entire
season, until rains renew the supply, and also to enjoin a deple-
tion of the lake which will lower the water surface so as to sub-
stantially increase the cost of making the diversion it is entitled
to make.''^. Another says: '^A person locating upon a stream
and appropriating the water has a right to have it flow (so far as
the natural channel is concerned) in precisely the same manner
as it did when he located ; and no prior locator has any right to
make any such change in the natural channel as will injure sub-
sequent appropriators of the same water." ^ And another case:
**PriDrity of appropriation, where no other title exists, undoubt-
edly gives the better right. And the rights of all subsequent ap-
propriators are subject to his who is first in time. But as others
coming on the stream subsequently may appropriate and acquire
a right to the surplus or residuum, so the rights of each successive
person appropriating water from a stream are subordinate to all
those previously acquired, and the rights of each are to be deter-
mined by the condition of things at the time he makes his ap-
propriation. So far is this rule carried, that those who are prior
to him can in no way 'change or extend their use to his prejudice,

M Handy Biteh Go. t. Louden ete. 26 Duekworth y. WatsonviUe etc.

Co., 27 Colo. 515, 62 Pae. 847; Baer Co., 150 Oal. 520, 89 Pae. 338.

etc. Co. V. Wilson,. 38 Colo. 101, 88 27 Lobdell y. Simpaon, 2 Nev. 274,

Pae 265. 90 Am. Dec. 637.

* Bartholomew y. Payette etc. Co.
31 TJtah, 1, 86 Pae. 481.

102

THE LAW OP APPBOPBIATION.

but are limited to the rights enjoyed by them when he secured
his. Nor has anyone the right to do anything which will^ in
the natural or probable course of things, curtail or interfere with
the prior acquired rights of those either above or below him on
the same stream. The subsequent appropriator only acquired
what has not been secured by those prior to him in time. But
what he does thus secure is as absolute and perfect and free from
any right of others to interfere with it as the rights of those be-
fore him are secure from interference by him."*

§ 48. Periodical Appropriations. — ^The later appropriation in
most of the cases is a claim to the surplus in amount of water.
It may just as well, however, be an appropriation of the sujj^
in time, tp use the whole or part when the prior claimant is not
using it at certain times. In Smith v. O'Hara (the leading
case),^ the court says: '*If the person who first appropriates the
waters of a stream only appropriates a part, another person may
appropriate a part or the whole of the residue ; and when appro-
priated by him his right thereto is as perfect, and entitled to the
same protection, as that of the first appropriator to the portion
appropriated by him. In Ortman v. Dixon,^ it was decreed that
the defendants were entitled to the waters of the creek for the
use of their mill; that the plaintiffs were then entitled to suffi-
cient water to fill their ditch No. 2: land that the defendants
were next entitled to the residue to fill their ditch No. 3. The
cases are very numerous which affirm, or assume without ques-
tion, this doctrine. It is usually the case that the amount of
water to which the several persons claiming its use are entitled
is measured by inches, according to miner's measurement, or by
the capacity of the ditches through which it is conducted from
the stream, but there is no reason why the amount may not be
measured in some other mode. They hold the amount appro-
priated by them respectively as they would do had the paramount
proprietor granted to each the amount by him appropriated.
The right to use the waters, or a certain portion of them, might
be granted to one person for certain months, days or parts of

28 Proctor y. Jennings, 6 Nev. 83,
3 Am. Bep. 240. Held, a subsequent
appropriator 's dam is not actionable
if it interferes with prior's water-

wheel above only because of heavy and
fortuitous rains.

29 43 Cal. 371, at 375.

30 13 Cal. 34.

§ 49

NATUBE OP THE BIGHT OP APPROPBlATION.

lOS

days, and to other persons for other specified times. An ag-
riculturist might appropriate the waters of a stream for irriga^
tion during the dry season,^ and a miner might appropriate them
for his purposes during the remainder of the year. And so may
several persons appropriate the waters for use during any dif-
ferent periods. There is no difference in principle between ap-
propriations of waters, measured by time, and those measured
by volume.**^

At all times that the water is not required by one appropriator
it should be at the disposal of the other for irrigation and other
uses when needed.^

§ 49. Temporary Appropriation. — A later comer may make
an appropriation, temporary in its nature, in the following cases :

(a) Where the prior appropriator has posted his notice and
begun construction work, but has not yet completed his flumes or
other appliances by which the water is to be diverted. During
this interval, which may last for a year or more in some cases,
others have a right to use the water. Their right is entirely a
temporary one, however, and ceases when the works of the prior
daimant are completed.^ This temporary use becomes wrongs
fill if it hinders the prior claimant's construction work, or pre-
vents his diversion of the water when his ^orks are finished.^
Likewise it must leHve him sufficient water during the construc-
tion work to keep his new ditch in good condition, or the water
otherwise needed to carry on his construction work.^ The prior
claimant need take no notice of temporary appropriations of this
kind during the progress of his construction work; they cease
ipso facto when he is ready, though he has not warned them.^*^

SI Dry season defined. Daly v.
Buddell, 137 CaL 671, 676, 70 Pae.
784.

^ To the same effect, Peregoy v.
Selliek, 79 CaL 568, 21 Pae. 966;
Stnto Paula Water Go. v. Peralta, 113
CkL 38, 45 Pae. 168; Sonthside etc.
Co. T. BuBon, 147 CaL 401, 81 Pae.
1107; Cache La Pondre Co. v. Wa-
ter Supply Co., 25 Colo. 161, 71 Am.
St. Bqp. 131, 53 Pae. 331, 46 L. R.
A. 175; City of TeUuride v. Blair, 33
Oolo. 353, 80 Pae. 1053; Bamee v.
Sabnm, 10 Nev. 217 (quotingSmith
T. CHara); Twaddle v. winters

(Nev.), 85 Pae. 283; Mann y. Parker
(Or.), 86 Pae. 598; StoweU ▼. John-
son, 7 Utah, 215, 26 Pae. 290; Fam-
hain on Waters, p. 2088; Pomeroj on
Biparian BightSjSec. 84.

aa Gardner v. Wright (Or.), 91 Pae.
286.

34 Nevada etc. Co. v. Kidd, 37 Cal.
282 ; Miles v. Butte etc. Co., 32 Mont.
56, 79 Pae. 549.

85 Ibid.

86 Ibid.; and Weaver v. Conger^ 10
Cal. 233.

87 Ibid.; and Woolman v. Garringer,
1 Mont. 535.

lOi THE LAW OF APPBOPBIATION. {50

(b) After the works are completed but pending the application
of the water thereby to actual use.^

(c) Where, after actual use has begun, the prior appropriator
who has been using the water ceases temporarily to do so. Dur-
ing such time, a later comer may divert the water and use it.
While a ditch by which the waters of a stream have been appro-
priated is out of repair, and not in a condition to carry any
water, an action will not lie to abate, as a nuisance, a reservoir
constructed across the bed of the stream, 'above the head of the
ditch, by which the water of the stream is collected and detained
and caused to overflow unequally.**

It will thus be seen that a fundamental object of the law of
appropriation is to have the water put to a beneficial use; con-
versely, to have none wasted.

§ 60. No Partiality. — ^Appropriators following all pursuits are,
as we h*ave seen,^ all on an equal footing. As is said in Basey
V. Qallagher:** ** Water is diverted to propel machinery in
flourmills and sawmills, and to irrigate land for cultivation, as well
as to enable miners to work their mining claims, and in all such
cases the right of the first appropriator, exercised within reason-
able limits, is respected and enforced. No distinction is made in
those States and Territories by the custom of miners and settlers,
or by the courts, in the rights of the first appropriator, from the
use made of the water, if the use be a beneficial one." Whether
the prior appropriator is himself a miner or not makes no differ-
ence.^ To the cases cited ante ^ we may add a quotation from
another. . Says the court in Wixon v. Bear River etc. Co. : ^ "The
four remaining instructions refused by the court are founded
upon the theory that in the mineral districts of this State, the
right of miners and persons owning ditches constructed for min-
ing purposes are paramount to all other rights and interests of
a different character regardless of the time or mode of their
acquisition ; thus annihilating the doctrine of priority .in all

88 See future needs, infra, see. 171. Cal. 42, 31 Pae. 112, 35 Fm. 334.

89 Bear River etc. Co. v. Boles, 24 See Revenue etc. Co. v. Balderstone,
Cal. 359. 2 Alaska, 363.

40 Ante, sec. 9. « Sec. 9.

41 87 U. S. 670, 22 L. ed. 452. 44 24 CaL 367, at 373, 85 Am.

42 Natoma etc. Co. v. Hancock, 101 Dec. 69.

§ 51 NATTJBE OF THE RIGHT OF APPBOPEIATION. 105

c&ses where the contest is between a miner or ditch owner and one
who claims the exercise of any other kind of right or owner-
ship of any other kind of interest. To snch a doctrine we are
unable to subscribe, nor do we think it clothed with a plausibility
sufficient to justify us in combating it." And so, while a miner,
prior to a sawmill, was protected,^ on the other hand, the sawmill
being prior was protected.^ Nor have irrigators, aside from
statute, any preference over miners if later in time,^'' but prevail
over miners if prior in time.*®

§ 61. Preferences and Pro-rating. — ^In the recent irrigation
codes and statutes, however, the foregoing rule of impartiality
is sometimes departed from, and uses are classified with regard to
times of scarcity. Domestic use is first supplied ; and next, irriga-
tion, and then all other uses.**^ In Colorado this preference is en-
forced by a provision that if water appropriated for domestic use is
used for irrigation to any extent whatever, it is a misdemeanor.*^
Further provisions in Colorado give the water commissioners
power in time of deficiency to pro-rate the water in volume or in
time.**^ In Utah, the water is pro-rated yearly when the water
reaches its annual low-water mark, as though priorities were the
same.^ In the Idaho constitution, it is declared that in times
of scarcity, domestic uses shall be supplied first ; second, mining
(in organized mining districts); third, agricultural; and fourth,
manufacturing.^ Similar provisions exist in statutes of some of
the other arid States.

These provisions, so far as they attempt to annihilate the doc-
trine of priority as between classes of uses, or to classify uses for
the purposes of priority, are. not fully enforced by the courts.

The preference to domestic uses, given the first preference, is
held in Colorado as only preserving a right similar to the common-
law riparian right of each riparian proprietor to domestic use on his
land. If the attempt by such provision were to defeat prior ap-

« In Conger v. Weaver, 6 Cal. 548, 49 Colo. Const., art. 16, see. 6; Neb.

65 Am. Dee. 528. Comp. Stats., 6451; Utah Stats. 1905,

^ In Tartar v. Spring ete. Co., 5 c. 108, sec. 54 ; and see statutes * of

Gal. 395, and Ortman v. Dixon, 13 other States.
GaL 33. 60 3 M. A. S., 1905 ed., 2269a.

^ Union ete. Co. v. Dangberg, 81 oi M. A. S. 2259, 2267.

Fed. 73. 88 Stats. 1905, c. 108, see. 54.

« Montana Co. v. Gehring, 75 Fed. S3 Art. 15, see. 3.
384, 21 C. C. A, 414.

106 THE LAW OF APPEOPBIATION. § 51

propriations for other purposes entirely it would be unconstitu-
tional, as a prior appropriator has a vested right that can be taken
only on eminent domain proceedings and payment of compensa-
tion.^ The same has been held of the Nebraska provision.^

The effect of these decisions is that the common law of riparian
rights is not, after all, rejected in toio, in Colorado, or, rather,
that is the effect if the provision in question is given any forcf*
at all. As yet the court has only been engaged in cutting down
that provision, and that is where the cases now stop, without af-
firmatively holding that the common-law right exists, but only
that beyond the common-law right the preference does not go.
It may be that the court will hold that the preference does not
even extend to the common-law right, thus in effect nullifying the
preference entirely. But if it rests where it now is, the appro-
priator s rights in Colorado are now governed by the common
law of riparian rights so far as tHey govern domestic use, and
everyone (riparian or not) has a right for domestic use regardless
of time of use, but only for and on his own land, and only to the
amount reasonably necessary, and probably subject to prior appro-
priations made before he acquired title to his land from the United
States. While limiting the degree of the preference to the com-
mon-law extent, it is not, however, confined to appropriators who
own riparian lani^

The present state of the Colorado law appears in the following
case: A water company purchased the water rights of private
parties with a view to furnish water for domestic use, and relied for
priority on the rights of their grantors, who had been using the
water for domestic use. The court says : * * Upon the question of the
right of appellees to divert the water for domestic use, based on the
fact that their grantors, as riparian owners, had enjoyed such use
since their first settlement upon the stream, the court below held
that such claim could not be sustained, and that the right to use the
water for such purpose must be exercised- in connection with

54 Striokler v. Colorado Springs, 16 Sterling v. Pftwnee etc. Co. (Colo.),

Colo. 61, 25 Am. St. Rep. 245, 26 94 Pac. 341.

Pac. 317; Armstrong v. Larimer etc. ^ Crawford v. Hathaway, 67 Neb.

Co,, 1 Colo. App. 49, 27 Pac. 235; 325, 1 08 Am^ St. Rep. 647, 93 N. W.

Montrose etc. Co. v. Loutsenhizer etc. 1?^^ ®^ p- ^- ^' ^^^' . f^ ^^^J^:

Co., 23 Colo. 233, 48 Pac. 532 ; Broad- ^^"^ *^^ Consumers, infra, sec 423

moor etc. Co. v. Brookside etc. Co., ® s^Town of SterUni? v Pawnee etc
24 Colo. 541, 52 Pac. 792; Town of ^o. (CoT), 94 Pari^^^^^

§51

NATUBE OP THE BIGHT * OF APPBOPBIATION.

107

riparian ownership. This holding is in accord with the views ex-
pressed in the recent case of Mon^ose Canal Co. ▼. Loutsenhizer
Ditch Co.,'^'' wherein it is said: 'While it is true that section 6 of
article 16 -of the constitution recognizes a preference in those using
water for domestic purposes over those using it for any other pur-
pose, it is not intended thereby to authorize a diversion of water for
domestic use from the public streams of the State by means of large

canals The use protected by the constitution is such use as

the riparian owner has at common law to take water for himself, his
family, or his stock, and the like. ' The court therefore correctly
decided that the water could not be used for such purpose by the
company, through its pipe-line."*^

Water appropriated -for domestic purposes cannot in Colorado
be used for irrigation.^^ In Nebraska it was held, citing the
Colorado cases, that in the preference to domestic uses, the
term ''domestic purposes"®^ has reference to such use of water
for domestic purposes as was permitted to the riparian pro-
prietor at common law, which ordinarily involves but little inter-,
ference with the water of a stream or its flow, and does not con-
template diversion of large quantities of water in canals or pipe-
lines.*^

The second preference in Colorado given to irrigators was held
not to apply to rights acquired before the adoption of the con-
stitution.^ The second preference in Idaho is given to mining, but
the court has held that this does not give the miner any right
to pollute the stream as against prior appropriators for irriga-
tion.®

The matter is not of recent origin and the courts find such pref-
erences do not work justice. In the first chapter it was- seen
that a preference of such kind in favor of use for mining was
urged when the foundations of the doctrine of appropriation were

57 23 Colo. 233. 48 Pac 532.

® Broadmoor Dairy Co. v. Brook-
side Water Co., 24 Colo. 541, 52 Pac.
"92. See, also. Town of Sterling v.
Pawnee etc. Co. (Colo.), 94 Pac. 341.

^ See Fulton etc. Co. v. Meadow
etc. Co., 35 Colo. 388, 86 Pac. 748.

* As jjsed in sec. 43, art. 2, c.
93a, Comp. Stats. 1901.

^ Crawford v. Hathaway, 67 Neb.
325, 108 Am. St. Bep. 647, 93 N.
W. 781, 60 'L. R. A. 889, saying:
''This is the only constmction which

will give any force to the statute. If
all of the water of a stream may be
diverted by a canal for so-called do-
mestic purposes involving identical
use for power, the priority given ag-
ricultural uses is rendered nugatory.
This is the construction given similar
provisions elsewhere.''

82 Colorado etc. Co. v. Larimer etc,
Co., 26 Colo. 47, 56 Pac. 185.

63 Hill V. Standard etc. Co., 12
Idaho, 223, 85 Pac. 909.

108

THE LAW OF APPBOPBIATION.

§ 52

being laid, and the California court had much difficulty in oveir-
coming it, but it was overcome. And it was fortunately so, for
the preference then would have become fixed for mining, to tlie
great detriment of irrigation, which has since overshadowed it,
but was then in its infancy.^ And so likewise a preference to
irrigation to-day will prevent the growth of use of water for
generating electric power, which is now in its infancy. The or-
iginal rule, which still prevails in California and most other
jurisdictions, of impartiality, is better.^

§ 62. Same — Pro-ratiiig. — The provisions for pro-rating,« in
times of scarcity, between users for the same purpose (€. g,^ be-
tween all irrigators) have also given much difficuUy^. Somethiner
more will be said of this hereafter.^ The Colorado court here
also has taken its stand against these annihilations of the doc-
trine of priority. In Farmers' High Line etc. Co. v. South worth ^
the majority of the judges rendered opinions that the ** pro-rat-
ing statute of 1883," if enforced literally and irrespective of the
priorities of the several appropriators was inhibited by the con-
stitution. That appropriators through the same ditch may have
different priorities has been frequently held in this State.^ Con-
sequently, the court has^ considered it stare decisis that there
may be circumstances in which appropriators, even though

64 See Crandall v. Woods, quoted
supra, see. 18.

65 Elwood Mead, Chief of the Irri-
gation and Drainage Investigations of
the Department of A^ieiuture, ex-
pressed the following views as a wit-
ness in Kansas v. Colorado: ''The use
of water for household and domestic
purposes I would put as of primary
importance. After that, irrigation. I
would put irrigation even ahead of its
lise for power where its use for power
would prevent its being used for irri-
gation, because you can provide your
power in some other way and yon
cannot provide food in any other
way. I would put irrigation as su-
perior to navigation, b^use of the
far greater value that you can get
out of the water, and because navi-
gation is the one instance of the use
of water where its importance instead

of increasing is diminishing." In
the 1905-1906 Report of the State
Engineer of Wyoming it is Buggested
b^ the Superintendent of Water Di-
vision No. 2 that whenever the right
to use water for ' power interferes
with irrigation, a way should be pro-
vided for the appraisement and sale
of the power right.

66 Infra, sec. 423 et sea.

67 18 Colo. Ill, 21 Pac. 10E8, 4
ti. R. A. 767.

68 Nichols V. McIntoBh, 19 Colo.
22, 34 Pac. 278, and in Farmers' In-
dependent Ditch Co. ▼. Agrieultoral
Ditch Co., 22 Colo. 513, 521, 55 Am.
St. Rep. 149, 45 Pac. 444, and in
Brown v. Farmers' High lane Canal
etc. Co., 26 Colo. 66, 56 Pac 1S3.

6» In Farmers' etc. Co. v. White,
32 Colo. 114, 75 Pac. 416.

f 53

NATUBE OF THE SIGHT OF APPROPRIATION.

109

through Hie same diteh, may not (in spite of statute) be com-
pelled to pro-rate with each other.""^

In an action where the right to pro-rate is claimed, all the par-
ties who are to pro-rate are necessary parties.*" A contract
with a company enforcing pro-rating will be upheld, however.^

In Utah, primary and secondary rights are by statute provided
for, the latter referring to unusual increases in streams and the
former being rights in ordinary stages.^

The question of pro-rating is further considered in hereafter
eonsidering consumers from corporations.^^

B. RELATION TO RIPARIAN PROPRIETORS.

§ 53. To Subsequent Settlers.— The United States having
granted the right to use the water to appropriators (such being
the theory of the California doctrine), later settlers take subject
thereto, as in any case of successive grants from a common gran-
tor where the prior grantee is in possession. A grant of land
{rom the United States remains subject to prior appropriations
of water or prior rights to ditches, as to all other prior posses-
sory rights.''^ In the first case cited in the note, the later grant
was by patent to railway lands ; in the last, to '^mining ground.
In De Necochea v. Curtis, it was of a homestead. No matter what
the character of the later grant, it cannot be devested of prior
rights of appropriation of water or rights to ditches. In Van
Sickle V. Haines,^' the Nevada court had adopted the contrary

•* See, however, Larimer etc. Co.
T. Wyatt, 23 Colo. 480, 48 Pac. 528.

^^ Blown V. Farmers' High Line
Canal etc. Co., 26 Colo. 66, 56 Pac.
183; Farmers' etc. Co. v. White, 32
Colo. 114, 75 Pac. 416.

« O'NeU V. Fort Lyon Co. (Colo.),
SO Pae. 849.

J^ 2 Utah Comp. Laws, 1888, sees.
2775-2789. As to primary and second -
^ rights in Utah, see Becker v.
Marble etc. Co., 15 Utah, 225, 49
Pw. 892, 1119; Salt Lake City v.
8^U Uke etc. Co., 25 Utah, 456, 71
Pae. 1069.

^* ^n/m, sec. 423 et seq.
^^. S. Bev. Stats., sees. 2339,
2340; Broder v. Natoma Water Co.,
JOl U. 8, 274, 25 L: ed. 790;
»• C., 50 CaL 621 ; Lrwin v. Phillips,

5 Cal. 140, 63 Am. Dec. 113; Himes
V. Johnson, 61 CaL 259; South Yuba
Water Co. v. Bosa, 80 Cal. 333, 22
Pac. 222; De Necochea t. Curtis, 80
Cal. 397, 20 Pac. 563, 22 Pac. 198;
Burrows v. Burrows, 82 Cal. 564, 23
Pac. 146; Bamelli v. Irish, 96 Cal.
214, 31 Pac. 41; Taylor v. Abbott,
103 Cal. 421, 37 Pac. 408; Faulkner
V. Bondoni, 104 Cal. 140, 37 Pac
883; McGuire v. Brown, 106 Cal
660, 39 Pac. 1060, 30 L. B. A. 384
Jacob V. Day, 111 Cal. 571, 44 Pac
243; Senior v. Anderson, 115 Cal
496, 47 Pac. 454; Williams v. Har
ter, 121 Cal. 47, 53 Pae. 405; Tuol
umne etc. Co. v. Maier, 134 Cal. 583,
66 Pac. 863.
re 7 Nev. 249.

110

THE LAW OP APPBOPBIATION.

§ 53

view before the Federal act of 1870,^ but after the statute the rule
was settled as above in Nevada as elsewhere.''^

That prior appropriations prevail over the land grants or
riparian rights or appropriations, or other rights of subsequent
settlers, is universally held.'"*

In a recent California case it is said:^ '*As to plaintiff's title
to the water, it is indisputable that the Wutchumna ditch was con-
structed over vacant government land prior to the time that
Pogue acquired any of his rights either as an appropriator or as
an owner of riparian lands, and, consequently, upon well-settled
principles, the plaintiff's earlier rights of appropriation are su-
perior to Pogue 's later rights either as an appropriator or as
riparian landowner. " 8\

The prior appropriation is a vested right, which is protected
whether the land patent does or does not contain a clause re-
serving accrued water rights. Successors in interest of the or-
iginal appropriator are protected, notwithstanding the patent did
not reserve any vested or accrued water right,®^ but land patents

^^ Bev. Stats., sec. 2340.

78 Barnes v. Sabron, 10 Nev. 217;
Shoemaker v. Hatch, 13 Nev. 261;
Hobart v. Wicks, 15 Nev. 418; Jones
V. Adams, 19 Nev. 78, 3 Am. St. Bep.
788, 6 Pac. 442.

70 Arizona. — Miller v. Douglas, 7
Ariz. 41, 60 Pac. 722; HiU v. Le-
normand, 2 Ariz. 354, 16 Pac. 266.

California, — Patterson v. Mills
(Cal.), 68 Pac. 1034; Judkins v. El-
liott (Cal.), 12 Pac. 116; Wutchumna
Water Co. v. Pogue. 151 Cal. 105,
90 Pac. 362; Wolf skill v. Smith, 5
Cal. App. 175, 89 Pac. 1001.

Colorado. — Tynan v. Despain, 22
Colo. 240, 43 Pac. 1039 (railway
grant) ; Larimer etc. Co. v. People, 8
Colo. 614, 9 Pac. 794.

Oregon. — Carson v. Gentner, 33 Or.
512, 52 Pac. 506, 43 L. R. A. 130;
Brosnan v. Harris, 39 Or. 148, 87
Am. St. Rep. 649, 65 Pac. 867, 54
L. R. A. 628; Dodge v. Marden, 7
Or. 457; Tolman v. Casey, 15 Or. 83,
13 Pac. 669; Nevada etc. Co. v. Ben-
nett, 30 Or. 59, 60 Am. St. Bep. 777,
45 Pac. 472; Speake v. Hamilton, 21
Or. 3, 26 Pac. 855; Kaler v. Oamp-
b^l, 13 Or. 596, 11 Pac. 301; Britt v.
Reed. 42 Or. 76, 70 Pac. 1029; Park-
ersviile etc. Dist. v. Wattier (Or.),
86 Pac. 775.

Utah. — ^Lehi Irr. Co. v. Movie, 4
Utah, 327, 9 Pac. -867.

Washington. — Thorpe v. Tenem
Ditch Co., 1 Wash. 566, 20 Pac 588;
Geddis v. Parrish, 1 Wash. 587, 21
Pac. 314; Isaacs v. Barber, 10 Wash.
124, 45 Am. St. Rep. 772, 38 Pac.
871, 30 L. R. A. 665.

United States. — ^Union etc. Co. v.
Ferris (Nev.) Fed. Cas. No. 14,371,
2 Saw. 176; Morris v. Bean (Mont),
146 Fed. 425; Broder v. Natoma Wa-
ter Co., 101 U. S. 274, 25 L. ed.
790.

See in general, also, the cases is
support of the Colorado doctrine,
ante, sec. 23. The two doctrines are
in entire accord in this.

80 Wutchumna Water Co. v. Pogue,
151 CaL 105, 90 Pac. 362.
' 81 Citing Osgood v. Eldorado Wa-
ter Co., 56 Cal. 571; Senior v. An-
derson, 115 Cal. 500, 47 Pac. 454;
San Jose L. & W. Co. v. San Jose
Ranch Co., 129 Cal. 673, 62 Pac. 269.

82 Carsen v. Gentner, 33 Or. 512,
52 Pac. 506, 43 L. B. A. 130; Jones
V. Adams, 19 Nev. 78, 3 Am. St.
Bep. 788, 6 Pac. 442; Isaacs ▼. Bar-
ber, 10 Wash. 124, 45 Am. St. Bep.
772, 38 Pac. 871, 30 L. B. A. 665:
ParkersviUe etc. Dist, v. Wattier
(Or.), 86 Pac. 775.

§54

NATTJEE OF THE BIQHT OP APPBOPBIATION.

Ill

DOW eontain a clause expressly reserving existing water rights,
the origin of which excepting clause is shown in the note.^

So far as the later Federal land grant carries riparian rights at
all, those rights exist only in the surplus over all prior appropria-
tiona®*

§ 54. To Prior Settlers. — ^Under the California doctrine, ripar-
ian rights attach to the land of prior settlers, which appropria-
tions thereafter must not disturb. Proceeding upon the theory
of grant from the United States as landowner, under the Cali-
fornia doctrine the relation between the prior settler and the
subsequent appropriator is that of successive grantees from the
same owner, and the later grant can cover only what was left
after the earlier one was made. This is the distinctive feature
of what^ is called the California doctrine. In the States fol-
lowing the Colorado doctrine^ riparian rights can never be ac-
quired by anyone, rejecting the California doctrine.

In California, prior settlers on riparian land, whether home-
steads, pre-emptions, railway grants or whatever the nature of

« DEPABTMENT OF THE INTE-
BIOB.

C^eneral Land Office,
Washington, D. C, Mareb 21, 1872.
Hon. A. A. Sargent, M. C, Washing-
ton, D. C.

Sir: I have the honor to aeknowl-
edge the receipt to-day, by reference
from yon, of a letter bearing date of
the twelfth instant, from George E.
Williams, Esq., of Placerville, Cali-
fornia, recommending an ezceptinff
eknae to be inserted m patents issued
for lands in the mineral regions, for
the protection of rights for the use
of water ditches, ete., in which you
eoncor.

In response, I would state that
this question came before ine for
consideration several weeks since, and
although from an examination of the
ninth section of ttte mining act of
Joly 26th, 1866, and the seventeenth
lotion- of the amendatory act of July
d, 1870, I am satisfied that rights to
the use of water for mining, manu-
facturing, agricultural or other pur-
poses, and rights for the construction
of ditches and canals, used in con-
oeetion with such water rights, are
fnlly protected by law; yet, in order

that all misapprehension that might
exist between the holder or claimant
of such right and such patentee might
be set at rest, it was determined in
all patents hereafter granted in min-
eral regions of the United States, to
insert an additional clause or condi-
tion, expressly protecting and reserv-
ing such water rights, and iwn-king
the patent subject thereto, the same
as before it was granted.

The blank forms for this patent
are now being printed, and will be
ready for use in a day or two, pending
the receipt of which, the granting of
patents in the mineral region for ag-
ricultural lands wiU be temporarily
suspended.

I am, sir, very respectfully,
Your obedient servant,
WILLIS DBUMMOND,

Commissioner.

Land patents have ever since con-
tained an excepting clause protecting
accrued water or ditch rights.

84 Infra, sees. 54.

85 In Willey v. Decker, 11 Wyo.
496, 100 Am. St. Bep. 939, 73 Pac.
210.

86 Ante, sec. 23.

112

THE LAW OF APPBOPBIATION.

S ^

their holding, have the rights of riparian owners, which later ap-
propriators cannot take away though they go on other and yacant
public limd to do it. This was the important principle laid down
in the leading case of Lux v. Haggin,^ affirming Crandall v.
Woods,^ and affirmed in a long list of cases.^ The riparian owner
acquires title to his usufructuary interest in the water when he
secures the land to which it is an incident, and the appropriator
acquires title by appropriation and the application of the water
/ to some beneficial use ; the time when either right attaches de-
termines the right. The decisive question in all cases as between
riparian proprietors and those claiming as appropriators is who
first secured the right to the use of the water in controversy.*^

The settler's riparian right will attach to the surplus over
prior appropriations, if there be prior appropriators who do not
use the whole stream, and his riparian right to such surplius will
prevail over later appropriators.**

The following passages state the rule in California: ''Both
the right to appropriate water on the public lands and that of
the occupant of portions of such lands are derived from the
implied consent of the owner, and as between the appropriator
of land or water the first possessor has the better right. The
two rights stand upon an equal footing, and when they conflict
they must be decided by the fact of priority .•^ Since the United
States, the owner of the land and water, is presumed to have
permitted the appropriation of both the one and the other, as
between themselves the prior possessor must prevail. "** Like-
wise, in a very early case, *'One who locates upon public lands
with a view of appropriating them to his own use becomes the
absolute owner thereof as against every one but the government,.

S7 69 Cal. 255 (see p. 336), 10
Pac. .674.

88 8 Cal. 136.

89 Among them the foUowing: Van
Bibt>er v. Hilton, 84 CaL 585, 24 Pae.
308, 598; Alia Land Co. v. Haneoek,
85 Cal. 219, 20 Am. St. Bep. 217, 24
Pac. 645; Modoc etc. Co. v. Booth,
102 CaL 151, 36 Pac. 431; McChiire
y. Brown, 106 Cal. 660, 39 Pac. 1060,
30 L. B. A. 384; Hargrave v. Cook,
108 CaL 72, 41 Pac. 18, 30 L. B. A.
390; Baxter v. GUbert, 125 CaL 580,
58 Pac. 129, 374; Bathgate v. Ir-
vine, 126 Cal. 135, 77 Am. St. Bep.

158, 58 Pae. 442; Bice t. Meinen,
136 CaL 292, 68 Pac. 817; Starr v.
Beck, 133 U. S. 541, 33 L. ed. 761,
10 Sup. Ct. Bep. 350.

»o Crawford v. Hathaway, 67 Neb.
325, 108 Am. St. Bep. 647, 60 L. B.
A. 889, 93 N. W. 781.

91 Barrows v. Pox, 98 CaL 63, 32
Pac. 811; Faulkner y. BondonL 104
CaL 140. 37 Pae. 883.

93 Citmg Irwin v. Phillipa, 5 CaL
140, S. C, 63 Am. Dec 113.

98 Lux V. Haggin, 69 CaL 255, at
355, 10 Pac. 674.

§ 54 NATUBE OF THE BIGHT OF APPBOPBIATION. 113

and is entitled to all the privileges and incidents which apper-
tain to the soil, subject to the single exception of rights ante-
cedently acquired The rule *qui prior est in tempore

potior est in jure* must apply. "•* In a recent case®* Mr.
Justice Shaw said: ''The effect of an appropriation under the
statute, when completed, is that the appropriator thereby acquires
a right superior to that of any subsequent appropriator on the
same stream. . . . .\But he acquires thereby no right whatever
as against right« existing in the water at the time his appropria- *
tion was begun: An appropriation does not, of itself, deprive
any private person of his rights; it merely vests in the appro-
priator such rights as have not previously become vested in
private ownership either by virtue of some riparian right, or
because of prior statutory or common-law appropriation and use.
It affects and devests the riparian rights otherwise attaching to
public lands of the United States, solely because the act of Con-
gress declares that grants of public lands shall be made subject
to all water rights that may have previously accrued to any per-
son other than the grantee." ^

We add quotations from other States following the California
doctrine : In Montana it was said in an early case allowing ap-
propriation: ''This decision, it will be understood, does not go to
the extent of allowing parties to appropriate and divert water so
as to prevent the same from flowing over land to which a party
had obtained the government title after the acquisition of this
title. If no one before the pre-emption and entry of land by
a party has acquired the right to divert the waters of a stream,
then the patent from the general government conveys the water
as an incident to the soil over which it flows. If it has been
appropriated before the time when the patent takes effect, it
does not."^ In Washington: "The right to appropriate water
for mining and agricultural purposes from watercourses on the
public domain is sanctioned by acts of Congress, and recognized
by all the courts ; but, when the government ceases to be the sole
proprietor, the right of the riparian owner attaches, and cannot
be subsequently invaded in those States where the common-law

»* Crandan v. Woods, 8 Cal. 136. w Knowles, J., in Thorp v. Freed,

^ Daekworth v. WatsonviUe tftc. 1 Mont. 651.
Co., 150 CaL 520, 89 Pfte. 338.
Wftter Bii^ta — 8

114 THE LAW OP APPBOPBIATION. § 54

doctrine of riparian rights prevails."**^ In Nebraska:^ *'We
conclude, therefore, that in this State, under any view we may
take of the subject, the right of riparian proprietors to the use
of the waters flowing in the streams to which their lands are
adjacent, when once attached, is, in its nature, a vested right
of property, a corporeal hereditament, being a part and parcel
of the riparian land which is annexed to the soil, and the use of it
is an incident thereto which the owners cannot rightfully be de-
prived of or devested except by grant, prescription, or condemna-
tion, with compensation by some of the means and methods
recognized by law for the taking or damaging of private prop-
erty for public use."

In the supreme court of the United States : In Sturr v. Beck *
the court said that when the government ceased '"to be the sole
proprietor, the right of the riparian owner attaches and cannot
be subsequently invaded. As the riparian owner has the right
to have the water flow ut currere solebat^ undiminished except by
reasonable consumption of upper proprietors, and no subse-
quent attempt to take the water only can override the prior ap-
propriation of both land and water, it would seem reasonable
that lawful riparian occupancy, with intent to appropriate the
land, should have the same effect."

The prior grant of land receives this protection against later
taking away of the water merely because it is the same protec-
tion that is given to the whole of a piece of land that is private
property. The rest of the land receives the same protection.
The land, by virtue of a prior grant from the government, being
private, the appropriator cannot build a ditch over it, which is
taking a right of way.^^ The appropriator cannot ditch over
a prior mining claim,^^^ nor build a house on land in private hands
of another,*^ nor interfere with the prior right of way of an-
other.^®* The cases in all States to-day recognize this inviola-
bility (except by condemnation on eminent domain) of the right

97 Nesalhous v. Walker (Wash.), , *^ United States etc. Co. v. Gal-

88 Pac. 1032. See, also, Sander v. ^g^y «« ^' 770, 32 C. C. A. 470.
Wilson, 34 Wash. 659, 76 Pac. 280. *^^ ^^^^ ""' ^"^ ^^ ^' ^ *^'

M Crawford v. Hathaway, 67 Neb. i^'J^rJ^^' ri^^v^. o nwi^ a^«

525, 108 Am. St. Bep. 647, 93 N. ,0^4^%^ tJ ' ' ^^'

W. 781, 60 L.. a. A. »8y. ,03 ^^^ ^ Oregon etc. Co., 139

w 133 U. S. 54i; 551, 33 L. ed. u. S. 663, 35 L. id. 305, 11 Sap.

761, 10 Sup. Ct. Bep. 350. ct. Bep. 641.

§1 55,56 NATUBB OP THE BIGHT OP APPBOPRIATION. 115

of the prior grantee to the land itself ;^^ the difference is only
that the Colorado doctrine refuses to extend it also to the right
to the water on the land.

§ 66. Same. — If there is more water in the stream than the
prior riparian owner can possibly ever use, the right of a sub-
sequent claimant to appropriate such surplus upon public land
in jurisdictions upholding riparian rights is *'sub judice^^^ and
entirely unsettled.^^ In the extreme case, to force the illustra-
tion, suppose a good-sized stream twenty miles long all on public
land except for a ten-acre farm at its mouth. We have given the
question considerable attention later herein; for ^e present '
purpose we merely state, without here citing the authorities, some
conclusions there reached.

a. The amount of water now used or not used by the prior
riparian owner is of no importance ; future possibilities are as
secure to him as present use.

6. 'During such non-use, however, perhaps a prohibitive injunc-
tion may be refused him against the subsequent appropriator ; and
instead, a decree rendered settling his riparian right to future use.

c. Possibly if neither present damage nor future possibility of
damage to riparian use can be shown, the subsequent appropria-
tion will be valid; remembering that the fact that there may (now •
or hereafter) be other riparian owners on the stream is of no im-
portance when they are not parties to the litigation ;^^ the contro-
versy must be decided solely with reference to the actual parties
to the suit, and possible use by strangers to the suit cannot be con-
sidered until they are actually brought into court.

We caution the reader, however, that there is much doubt over
all but the first proposition.^^

§ 66. Prior Settlers Who Hold the Land m Fee.— All land
that has passed into private ownership in fee simple is fully
within this rule, and protected in its riparian rights against sub-
sequent appropriators, though the appropriator goes on vacant

104 InfrOf e V tested by one riparian owner on be-

i« Infra, Part 11, c. VII. half of other riparian owners.

,^ _ ' . - ,/v^ J ^^ The matter is very unsettled,

MW See jnfra, sec. 196, and espe- ^nd, in view of decisions of the CaK-

eially Duckworth v. Watsonville W. fo^ia court since the first edition of

Co., 150 Cal. 530, saying that an ap- this book, the positive jtatements

propriation eani}ot be vicariously con- ^here made must be withdrawn.

116

THE LAW OF APPBOPBIATIOX.

{ 5:

public land to make his appropriation.^^ UsnaUj the land passes
into private ownership by virtue of a patent under the homestead,
pre-emption, or other Federal laws. But the fee may have been
acquired by virtue of a Mexican grant, made before the United
States acquired sovereignty ; and riparian rights (in jurisdictions
recognizing riparian rights) fully attach to land, whose title is de-
raigned under a Mexican grant.^^ Of course, the California rule
does not apply in jurisdictions where riparian rights are rejected
in ioio}^^
Riparian rights attach likewise to a grant of State lands.^^^

I 67. Frier Bettten Before Patent.— It was at first held that,
until patent issues for the land, or at least until full payment,
riparian rights are not protected against later appropriation.^"
But that was going too far, and it is now settled that the first
formal step (filing entry or application in the land office) is
sufficient.^" **It was held in McGuire v. Brown,*" which is the
leading case in the State and a case most excellently reasoned.

106 Lux V. Haggin, 69 GaL 255, 10
Pftc. 674, and eases mpra, sees. 22,
54.

100 Lux V. Haggin, 69 GaL 255,
10 Pae. 674; Pope v. Kmman, 54
CaL 3; Yemon etc. Go. v. Los An-

Sles, 106 Gai. 237, 39 Pae. 762;
tj of Los Angeles t. Pomeroj, 124
GaL 597, 57 Pae. 585; Pomeroj on Bi-

Sarian Bights, sec. 42. Titles un-
Br Mexican grants were settled under
Act of Gongrees March 3, 1851, en-
titled, ' ' An act to ascertain and settle
the private land claims in the State
of Galifomia."

110 Gntierres v. Albnqnerque etc.
Go., 188 U. S. 545, 47 L. ed. 588,
23 Sap. Gt. Bep. 338. Before the
treaty of Guadalupe Hidalgo or the
Gadsden purchase, landowners are held
in Arizona not to have had the rights
of riparian owners, and hence that
no such right attaches to a Mexican
grant so as to be preserved hj con-
firmation of the grant after the
United States acquired sovereignty.
On the contrary, the Mexican law re-
sembled (it is held in AriJEona) the
law of appropriation rather than the
law of riparian rights. Boquillas
Land Go. v. Gurtis (Ariz.), 89 Pae.
504.

ui Lux V. Haegin, 69 Cal. 255,
10 Pae 674, sayinff: ''Our eoaeln-
sion on this branen of tte ease is
that section 1422 saves and protects
the riparian rights of all those who,
under the land uiws of the State, shall
have acquired from the State the
right of possession to a traet of rir
parian land prior to the initiation of
proceedings to appropriate water in
accordance with Uie provisions of the
Gode."

112 Osgood V. Water Go., 56 CaL
571; Parley v. Spring Valley etc
Co., 58 Gal. 142. Not untU final
proof was the holding originaUy in
Washington. Ellis v. Pomeroy etc
Go., 1 Wash. 572, 21. Pae 27.

118 Sturr V. Beck, 133 U. 8. 541,
33 L. ed. 761, 10 Sup. Gt. Bep. 850;
Lone Tree etc. Go. v. Gydone etc. Co.,
15 S. Dak. 519, 91 N. W. 358 ; Omse
V. McGauley, 96 Fed. 369; Oonkling
V. Pacific etc. Go., 87 GaL 896, 25 Pae
399; Shenandoah etc Go. v. Morgan,
106 GaL 409, 39 Pae 802 ; MeGniiv v.
Brown, 106 GaL 660. 39 Pae 1060,
30 L. B. A. 384; Union M. ft M. Go.
V. Dangberg, 2 Saw. 450, Fed. Gas.
No. 14,370; Long on Irrigation, sec
30.

114 106 GaL 660, 39 Pae. 1060, 30
L. B. A. 384.

§ 57

NATUBE OF THE BIGHT OF APPBOPBIATION.

117

that the statutes above quoted ^^^ do not confer the right upon an
appropriator of water on public land to go upon land after its
entry by another as a homestead but before the claimant had
made final proof, and. change the point of diversion or construct
new ditches or in any way to interfere with the. initiatory rights
of the homestead applicant. Sturr v. Beck ^^° holds that the filing
of a homestead entry of a tract across which a stream of water
runs in its natural channel with no right or claim of right to
divert it therefrom, confers a right to have the stream continue
nmning in that channel without diversion, which right, when com-
pleted by full compliance with the requirements of the statutes
on the part of the settler, relates back to the date of the filing
and cuts off intervening adverse claims to the water. The rea-
soning in this case would apply equally to the relation back of
the right of the homestead entryman to the land conveyed to him
by the patent. ""«

The date from which riparian rights are protected is, in the
California decisions, the filing of entry or application in the land
office — ^the first formal step under the homestead or other statutes
for acquiring the land.^^'' In some cases in other jurisdictions it is
stated indefinitely, but seemingly to the same effect, such as **from
the first necessary proceedings" or "from the very inception of his
title. "^^ But there are statements in the cases which date riparian
rights from the date of settlement or occupancy with intent to ac-
quire title, though no filings have yet been made,^" which does not

"4ft U. S. Bev. Stats, sees. 2339,
2340.

ns 133 U. S. 541, 33 L. ed. 761,
10 Sup. Ct. Bep. 350.

116 Atkinson v. Washington Irr. Go.
(Wash.), 86 Pac. 1123, protecting the
settler against an irrigation company
wfaieh sought to initiate work on the
groirnd that patent had not yet issued
to the settler.

117 To the same effect, Sturr y.
Beck, 6 Dak. 71, 50 N. W. 486; Cruse
T. McGanley, 96 Fed. 369.

■^is Benton v. Johncox, 17 Wash.
277, 61 Am. St. Bep. 912, 49 Pac.
498, 39 L. B. A. 107, adding: "The
doctrine that the rights of a pat-
entee or grantee of the govemment
relate back to the first act of the set-
tler necessary in tne proceedings to
acquire title is also announced in the
following cases: Sbeplej v. Cowan,

91 U. S. 330, 23 L. ed. 424; Larsen
V. Navigation Co., 19 Or. 240, 23
Pac. 974; FauU v, Cooke, 19 Or. 455,
20 Am. St. Bep. 836, 26 Or. 662.
See, also, Kinkead on Irrigation, sec.
210; Mug. Co. y. Dangberg, 2 Saw.
450, Fed. Cas. No. 14,370."

ii» Morgan v. Shaw, 47 Or. 333, 83
Pac. 634; JLione Tree Ditch Co. v.
Cyclone Ditch Co., 15 S. Dak. 519,
91 N. W. 352; FauU v. Cooke, 19
Or. 455, 20 Am. St. Bep. 836, 26
Pac. 662; Benton v. Johncox, 17
Wash. 277, 61 Am. St. Bep. 912, 49
Pac. 498, 39 L. B. A. 107, saying the
settler is entitled to the common-law
rights of riparian proprietors, as
against subsequent appropriators of
the water, from the date of their oc-
cupancy, with intent to acquire the
title of the govemment in pursuance
of law.

118 THE LAW OF APPBOPBIATION. § 58

seem a proper view. Naked occupancy was alone enough in the

pioneer dayisi of California before the Federal statutes, when a

•

naked appropriation of land by taking possession was as complete
a right as the Ujiited States afforded; and the land appropriator
was presumed to have the government's grant because of his
occupancy.^^ But since the Federal statutes for acquiring land
titles, an express grant is provided for, which should do away
with implications and presumptions. To initiate this express
grant, preliminary filings are now necessary, and to protect land
rights (or riparian rights incident thereto) without these filings
would seem in violation of the Federal statutes.

At all events, naked occupancy without actually intending to
make the necessary filings at all will not protect riparian rights,
and cases so hold, without seeming to consider that the inten-
tion would affect the question. ^^^ Naked possession of the pub-
lic lands gives no rights against those who peaceably seek to
obtain rights under the statutes now passed for that purpose.^^
A bare squatter on public land has no riparian right.^^

A valid mining location constitutes the locator a riparian owner
within this rule ; and water flowing through a mining location
cannot be appropriated later to the injury of the owner of the
mining claim's riparian rights, though the claim be not pat-
ented.^**

§ 58. ConclusioiiB. — ^The following conclusions seem to be war-
ranted from the foregoing:

a. Successive appropriators are independent and priority gov-
erns, on the one hand; on the other, the surplus over the prior
appropriation vests in the later appropriator. Each appro-
priator is a prior one as against all who are subsequent to him.
The theory on which this arose, which is the theory still prevail-

120 Crandall v. Woods, 8 Gal. 136. 122 Lindley on Mines, see. 216 et

121 Morris ▼. Bean (Mont.), 146 seq. See CaL Pen. (jode, see. 420.
Fed. 432; Scott v. Toomey, 8 S. Dak. 123 Kendall v. Joyce (Wash.), d3
639, 67 N. W. 838; Silver Creek etc. Pac. 1091.

Co. V. Hayes, 113 CaL 142, 45 Pac. 124 Crandall v. Woods, 8 Gal. 136;

191; Hobart v. Ford, 6 Nev. 77; Leigh v. Ditch Co., 8 CaL 323. See

Lake v. Tolles, 8 Nev. 285, both Ne- Pomeroy on Biparian Bights, sec 33

vada cases beine while riparian rights et seq.
frere recognizea.

§ 59 NATUBE OP THE BIGHT OF APPBOPBIATION. 119

ing under the California doctrine, is that the relation between
successive appropriators is that of successive grantees from the
United States as original owner of the right to the water incident
to the public lands.

k The relation between appropriators and riparian owners as
respects use of water raises no question upon the law of waters
under the Colorado doctrine, as riparian rights are not there
recognized.

c. The relation between appropriators and riparian proprietors
under the California doctrine is that of successive grantees from
the United States as owner of the right to the water incident to
the public lands. Priority governs on the one hand, as to whether
the riparian owner's rights prevail or not; on the other hand,
riparian rights exist in the surplus over the prior appropriation.
As to any surplus over the possible uses of the riparian owner
the matter is **«*6 judice.'*

0. CHABACTEBISTICS.

§ 60. The Right is Usufmctuary.— Speaking of ''qualified
property" as opposed to an absolute right of property, Black-
stone says; *^ **Many other things may also be the objects of
qualified property. It may subsist in the very elements of fire or
light, of air, and of water. A man can have no absolute per-
manent property in these, as he may in the earth and land ; since
these are of a vague and fugitive nature, and therefore can admit
only of a precarious and qualified ownership, which lasts so long
as they are in actual use and occupation, but no longer. If a
man disturbs another^ and deprives him of the lawful enjoyment

•

of these; if one obstructs another's ancient windows, corrupts the
air of his house or gardens, fouls his water, or unopens and lets
it out, or if he diverts an ancient watercourse that used to run
to the other's mill or meadow; the law will animadvert hereon as
an injury, and protect the party injured in his possession. But
the property in them ceases the instant they are out of possession ;
for. when no man is engaged in their actual occupatipn, they be-

12^ Book II, chapter XxV, p. 395.

120

THE LAW 0¥ APPBOPBIATIOH.

§ 60

come again common, and every man has equal right to appropriate
them to his own nse."^*

The right of an appropriator is likewise only nsufmctoary,^
though for shortness' sake, the appropriator is spoken of as the
owner. ^^ There is no property in the water itself nor in the
channel itself coni^erred by the appropriation; the right is only
to a use and flow.

§ 60. No Property in tiie "Oorpns" of the Water.— Property

in the corpus of the waters is not recognized, so long as flowing
naturally; the naturally flowing substance is like the air in the
atmosphere, incapable of bein'g owned. ^^ ^'This court has never
departed from the doctrine that running water, so long as it con-
tinues to flow in its natural course, is not, and cannot be, made
the subject of private ownership. A right may be acquired to its
use, which will be regarded and protected as property; but it
has been distinctly declared in several cases that this right car-
ries with it no speciflc property in the water itself. " Adding that
it may be different with water in a ditch severed from the
natural stream.^*^

198 This ' quotation is given as an
explanation of what is meant hj a
usufruetuaiy riffht, that feature being
common to both the STstems of ap-
propriation and riparian rights. The
passage quoted and others in Black-
stone were at one time further thought
to countenance the law of appropria-
tion in Engluid; but that has long
since been repudiated. See Part II,
cc. I, 11, infra.

127 Hill V. Newman, 5 Cal. 445,
63 Am. Dec. 140; Nevada etc. Co. v.
Kidd, 37 Oal. 282, and cases infra,
sec. 60, and Nev. Stats. 1907, p. 30,
sec. 3.

128 Biverside etc. Go. v. Gage, 89
Cal. 410, 26 Pac. 889.

129 Inter alia, Kidd y. Laird. 15
Cal. 161, 76 Am. Dec 472 : Eddy v.
Simpson, 3 Cal. 249; McDonald v.
Askew, 29 Cal. 200; Los Angeles v.
Baldwin, 53 Cal 469; McGuire v.
Brown, 106 CaL 660, 39 Pac. 1060,
80 L. B. A. 384; Hanson v. McCue,
42 Cal. 308; Pomeroj on Biparian
Bights, sec. 55.

180 Kidd V. Laird, 15 Cal. 162-180,
76 Am. Dec. 472. Neither a riparian

proprietor nor an appropriator has
title or ownership in the water of the
stream. This has been expressly de-
cided with respect to appropriators.
The same rule applies to ibe riparian
owner. Mr. Justice Shaw, in Duck-
worth V. WatsonviUe Water Co., 150
Cal. 520, 89 Pac. 336. The carpnM
of naturally flowing water has been
declared to belong to the appropria-
tor as real property, but cfoarly an
inadvertence, as the case dealt with
a' water right and not the corpw.
Stanislaus Water Co. v. Baehman

(Cal. Sup.), 93 Pac. 858. Infra, sec.
279 et seq.

That appropriation Is only nsufme-
tuary, and confers no ownenhip in
the oorpiu of the water is also held
in Eddy v. Simpson, 3 CaL 249, 58
Am. D^. 408; Saint v. Guerrerio, 17
Colo. 448, 31 Am. St Bep. 320, 30
Pac. 335; Salt Lake Ci^ ▼. Salt
Lake etc. Co., 24 Utah, 249, 67 Pac
672, 61 L. B. A. 648: Salt Lake
City V. Salt Lake etc. Co., 25 Utah,

456, 71 Pac. 1069; Boise etc. Co. v.
Stewart, 10 Idaho, 38, 77 Pae. 28.

§61

NATUBB OP THE BIGHT OF . APPEOPBIATlON.

121

The principle is set forth, at length in later chapters.^'^
Hence, the appropriator cannot sue for the value of water at so
much per inch or gallon diverted from the stream above him by an-
other; he must declare for the damage to his enterprise from loss of
the use and flow.^^ Likewise a sale of the water right does not
mean the delivery of any specific qu^tity of water.^^ It does not
sell the water itself, but only the right to use it."^ Nor can one set
up a claim to water after it has been allowed to run off.^^ When,
however, the water has once been severed from its natural water-
course, so long as it is in an artificial conduit or watercourse,
such as flumes or ditches, .it does become the subject of owner-
ship, and like the law respecting the fish in the water after being
eaught, the carpus is personal property.^^

The point here involved is a fundfimental one in all legal
eonceptions of rights in running water as distinguished from
standing or percolating water, being borrowed into the law of
appropriation from the common law and into the common law
from the civil law. It is what is comprehended by the phrase that
nmning waters are ^^pubUci juris/* elsewhere herein discussed: ^^"^

§ 61. No Property in the OhanneL-^^roperty in the channel
does not pass to the appropriator, but remains in the United
States unless granted as land to others under the homestead or
other Federal land law» And, consequently, the same cliannel
may be used by several appropriators, as where one man had ap-
propriated water and a later comer above stream added a large
volimie of water to the channel, and then diverted it again before
it reached the former appropriator, thus using the channel as a
link in a long ditch line.^^ If the appropriator happens also to
own the channel by some other source of title, he may sell it
without affecting the water right and vice versa.^** Others may
bnild a reservoir in the bed.^^ If a river abandons its channel

iHi Sections 153, 154, and Part 11,
«. 1, II.

132 Parks etc. ▼. Hoyt, 57 Cal. 44 ;
BiTenide etc. Co. v. Gage, 89 Gal.
410, 418, 26 Pae. 889.

is^ Booth V. Chapman, 59 Cal. 149.

^ Johnston v. Little Horse etc.
Co., 13 Wyo. 208, 110 AnL St. Bep.
986, 79 Pac. 26, 70 L. B. A. 341.

i» Eddy T. Simpson, 3 Cal. 249,
58 Am. Dee. 408; infra, sec. 233.

iM Infra, see. 153.

187 Ante, sec. 36, "Property of
Public," and post, sec. 272, "First
Principles. ' '

188 Hoffman v. Stone, 7 Oal. 46;
Butte Co. V. Vaughn, 11 Cal. 143, 70
Am. Dec. 769.

18» Doyle V. San Diego Co., 46
Fed. 709.

140 Larimer etc. Co. ▼. People, 8
Colo. 614, 9 Pac. 794.

122 THE LAW OP APPBOPBIATION. § 62

while on public land, the channel cannot, after title to the bed
has passed as land to a private owner, be used for drainage of
waste by an appropriator, since his appropriation gave him no
property in the channel itself.^**

§ 82. The Bight it Ezdufiye. — As opposed to the correlative
rights of the common law, whereby all on the stream have an
equal right, under the law of appropriation the rights of the
claimants are unequal. Each has an exclusive right to the extent
of his prior appropriation, and appropriations vary greatly in
the extent of right appropriated. Full protection is given to the
prior appropriator against all comers. This exdusiveneas in-
cludes the right to tributaries and sources,^** even tributary per-
colating water so far as proof traces it as tributary.*** And also
storm waters that are of annual occurrence.*^ It is held: ''The
prior appropriator of a particular quantity of water from a
stream is entitled to the use of that water, or so much thereof as
naturally flows in the stream, unimpaired and unaffected by any
subsequent changes which, in the course of nature, may have
been wrought. To the extent of his appropriation his supply
will be measured by the waters naturally flowing in the stream
and its tributaries above the head of his ditch, whether those
waters l)e furnished by the usual rains or snows, by extraordinary
rain or snow fall, or by springs or seepage which directly con-
tribute. ''***^ It is said, "The appropriator took the water with the
right to have the stream flow as it was wont to flow,***^ which
is as strict a statement as the **aqua currit et debet currere ut
currere solebat" of riparian rights. And he can insist on the flow,
though he has also rights on another stream which would supply
him — ^he cannot be made to exhaust his rights on one before
using the other.**^

But he has no right to waters brought into the stream exclu-
sively by the labor or artificial works of another man who has not

intended to abandon them,*^ for they are not a part of the natural

141 BogUno V. Giorgetta, 20 Colo. ^^ Beaverhead etc. Co. v. IMUon
App. 338, 78 Pac. 612. ©*«• Co., 34 Mont. 135, 85 Pac. 880.

142 Infra n^ 96 ^^ Morris v. Bean, 146 Fed- 435.
.!o tL !« "^ Norman v. Corbley, 32 Mont.
148 Infra, sec. 356. 195^ 79 pac. 1059.

144 Infra, sees. 94, 319. 148 Infra, sec. 234, "Recapture."

|fi2

NATUEE OF THE BIGHT OF APPBOPBIATION.

123

Bow. Nor has he such a right in the natural flow as to insist on
neeiving it in the natural cliannel ; the upper appropriator ma}"^
imtead give it to him by returning it into his ditch above his
f lace of use — ^not necessarily into the stream above the head of his
ditch;"* if he gets the quantity to which he is entitled,^^ there-
by substantially permitting the substitution of an artificial flow
if it can be done without damage.^^^ ''The principle, in brief, is
this: That where one is entitled to the use of a given amount of
water at a given point, he may not complain of any prior use
made of the water which does not impair the quantity or quality
to which he is entitled, and, on the other hand, he may not lay
claim to any excess of water over the amount to which he is en-
titled, however it may be produced. "^^

Nor has he the right to any flow where, from natural causes,
saeh as drying up, the stream if undisturbed would not reach him
anyway,*^ provided, however, that where, in the absence of surface
flow to him, there is still an underflow or ** sub-flow" in the dry bed,
the upper surface diversion must not diminish the underflow,^*^
and also provided the evidence that the water would all naturally
disappear before reaching plaintiff is clear and convincing.^^
There is no right in the natural flow such as would allow the ditch-
ing back of a stream that had shifted its course naturally ; ^^

i« Austiii V. Chandler (Ariz.), 42
Pac 483.

*^ Harrington v. Demarris, 46 Or.
Ill, 77 Pac. 603, 82 Pac. 14, 1 L.
R. A., N. 8., 756.

i''i Pomona W. Co. v. San Antonio
W. Co. (Cal. Sup., Jan. 17, 1908), 93
Pae. 881; Wiggins v. Muscupiabe etc.
("o., 113 Cal. 182, 64 Am. St. Rep.
337. 45 Pac. 160, 32 L. B. A. 667 ;
Huffner v. Sawday (Cal.), Feb. 18,
1908, 94 Pac. 424, dictum; Fuller v.
i^harp (Utah), 94 Pac. 817.

15J Pomona W. Co. v. San Antonio
^. Co. (Cal. Sup., Jan. 17, 1908),
93 Pac. 881.

m Beaverhead etc. Co. v. Dillon
etc. Co., 34 Mont. 135, 85 Pac. 880;
Paige V. Bocky Ford etc. Co., 83 Cal.
^4. 21 Pfcc. 1102, 23 jr'ac. 875; Bay
mond V. Wimsette, 12 Mont. 551, 33
Am. St. Bep. 604, 31 Pac. 537 ; West
Point etc. Co. v. Moroni etc. Co.,
-I Utah, 229, 61 Pac. 16 ; Howcrof t
V. Union etc. Co., 25 Utah, 311, 71

Pac. 487; Union etc. Co. v. Dang-
berg (C. C. Nev.), 81 Fed. 73;
City of Telluride v. Blair, 33 Colo.
353, 80 Pac. 1053; Fuller y. Sharp
(Utah), 94 Pac. 817; Duckworth v.
Watsonville W. Co., 150 Cal. 520;
Guttierres v. Wege, 145 Cal. at 735;
the latter two applying the same
rule to riparian owners. Contra, Mor-
ris V. Bean, 146 Fed. 436, sayins that
it is no defense that water would not
reach plaintiff anyway, if defendant's
diversion is a contributing cause.
Such a defense, the court sajrs, is
quite common, as old as irrigation,
and perhaps as old as trespass itself.

IB"* Huffner v. Sawday (Cal.), Feb.
18, 1908, 94 Pac. 424.

155 Alamosa Co. v. Nelson ((}olo.),
93 Pac. 1112.

136 Paige V. Bocky etc. Co., 83 Cal.
84, 21 Pac. 1102; 23 Pac. 875; Wholey
T. Caldwell, 108 Cal. 95, 49 Am.
St. Rep. 64, 41 Pac. 31, 30 L. B. A.
820.

124 THE LAW OF APPBOPBIATION. § 63

nor, if a stream becomes filled with mud«and silt, can the ap-
propriator raise his dam higher so as to preserve the natural
depth there, if in so doing the rights of others are' interfered with,
thongh later in time.^"

The right to exclusive use carries with it such right to ezdusiYe
flow as is necessary to preserve the appropriator's use without
damage to his use; but is not violated by any act that does not
interfere with his use of the water. The right to the flow is
subordinate to the right of use, and cannot exceed it'.

§ <B. Independent of Ownership or Posseision of Land. — ^The
water may be taken from and over and be used on distant lands
owned entirely by the government or by other private parties,
as was and is frequently the case with canal companies. This is
a distinguishing feature of the law of appropriation. Appro-
priation is the doctrine of separate ownership of land and water."*
The original case of Irwin v. Phillips *** was such a case. Title
to land is in no way concerned.**^ This is now accepted without
comment in California. We may also quote the following from
Smith V. DenniflF:^®^ **The legal title to the land upon which a
water right acquired by appropriation made on the public domain
is used or intended to be used in no way affects the appro-
priator's title to the water right." The supreme court of the
United States has said that corporations diverting water need
not own any land, nor need they be a combination of land-
owners.**^

The necessity for taking the water to distant lands, and making
the right to the water independent of ownership of riparian
land gave rise to the rule that the right is independent of owner-
ship of any land. Use on distant land is hence characteristic.
This characteristic use on distant lands involves loss of the effi-
ciency of the water and is a necessary evil of the law of appro-
priation* In one case the loss by seepage in transportation was
so great as to damage the lands passed over.^^

15T Nevada etc. Co. v. PoweU, 34 161 24 Mont. 20, 81 Am. St. Rep.

Cal. 109,' 91 Am. Dec. 685. 408, 60 Pac. 398, 50 L. B. A. 741.

IBS Crawford etc. Co. v. Hathaway, 102 Gutierres ▼. Albuquerque etc.

60 Neb. 754, 84 N. W. 273. Co., 188 U. 8. 645, 47 L. ed. 588,

159 5 Cal. 140, 63 Am. Dec. 113. 23 Sup. Ct. Bep. 338.

100 Santa Paula etc. Works v. Per- 108 Stuart ▼. Noble etc. Co., 9 Ida-

alta, 113 CaL 38, 45 Pac. 168; quoted ho, 765, 76 Pac. 255.
infra, sec. 70.

I 63

NATT7BE OF THE BIGHT OP APPBOPBIATION.

125

The rule has been chiefly litigated in regard to change of
place of use, and sale of the water right on distant land, and
citation of authorities is postponed to a later section,^^ except
for a few to show the prevailing acceptance in the courts of the
rale that the appropriation is independent of title or possession
of any land.^*^

Under the rule of riparian rights at common law the right to
use the water is annexed to riparian lands and dependent upon
title thereto ; and the whole law of appropriation was a protest
against fastening the right to any land ; conforming to the necessi-
ties of miners in the early days in California, when the use had
to be made where the mines were, in the mountains often away
from the stream valley , and changed from place to place as old
claims gave out and new ones were discovered. But to-day it
is sometimes thought unfortunate in its application to irrigation
whieh can be made best in the valleys near the stream, or, at all
events, may be permanently carried on in a fixed location. The
recent legislation, consequently, is attacking this principle, and,
in the arid States, substituting the principle ''that the right to
Qse the water for irrigation inheres in the land irrigated," and
is inseparable therefrom, or separable only with the permission
of the State engineer and publication of notice.^^ President

J«* Infra, see. 186.

i« Calif omia. — CaUdns ▼. Soroids
ete. Co^ 150 OaL 426.

Cohrado. — Ck>ffin v. Left Hand
Diteh Co., 6 Colo. 448; Thomas v.
Gunad, 6 Colo. 530; Striekler t.
Colorado Springs, 16 Colo. 61, 25 Am.
St Bep. 245, 26 Pae. 313 ; Town of
Sterling v. Pawnee etc. Co. (Colo.),
94 Ric. 341.

idoAo.— Hard t. Boise ete. Co., 9
laaho, 589, 76 Pac. 331, 65 L. B.

A. 407.

Ifontona.— Hajea v. Biuard, 31
Mont. 74, 77 Pac. 423; Smith y. Den-
niff , tupra,

Nevada, — ^IJnion ete. Co. v, Dans-
berg, 81 Fed. 73.

Orepoa.— Nevada etc. Co. v. Ben-
nett, 30 Or. 59, 60 Am. St, Bep. 777,
45 hie. 472.

Utah,— smott V. Whitmore (Utah),
24 Pac. 673.

Wathington, — Thorpe v. Tenem
Ditch Co., 1 Wash. 566, 20 Pac. 588.

Wyoming, — Johnston v. Little
Horse etc, Co., 13 Wyo. 208, 110 Am.
St. Bep. 986, 79 Pac. 22, 70 L. B.
A. 341; Willey v. Decker, 11 Wyo.
496, 100 Am. St. Bep. 989, 73 Pac
210; Frank v. Hicks, 4 Wyo. 502, 35
Pac. 475.

See, dUo, Hawaiian Com. etc Co.
V. Wailuku etc. Co., 15 Hawaii, 677;
Pomeroy on Biparian Bights, sees. 46,
92; Kinney on Irrigation, sec 156;
Gould on Waters, sec. 230; 17 Am.
tb Eng. Ency. of Liaw, 497, and eases
collected in 65 L. B. A. 407, note.

106 E, g., Nevada Stats. 1905, p.
66; Utah Stets. 1905, c. 108, sec. 60;

Oklahoma Stats. 1905, p. , sec.

30; S, Dak, Stats. 1905, p. , sec^.

31, 47. In Arieona, Gould v. Mari-
copa etc. Co., 8 Ariz. 429, 76 Pac.
598; Slosser ▼. Salt Biyer etc. Co., 7
Ariz. 376, 65 Pac. 332. In Nebras-
ka, Farmers' Irr. Dist. v. Frank, 72
Neb. 136, 100 N. W. 286.

126 THE LAW OP APPEOPBIATION. §§ 64, 65

Roosevelt said in a message:^*' **In the arid Stat^ the only
right to which water should be recognized is that of use.
In irrigation this right should attach to the land reclaimed
and be inseparable therefrom." The National Irrigation Con-
gress^^ adopted . a memorial declaring among other things
that the right to the use of water for irrigation should inhere
in the land irrigated. Is this an attempt at a compromise be-
tween appropriation and riparian rights T A characteristic of the
common law of riparian rights is that the right to use the water
is attached to certain lands; a characteristic feature of appro-
priation is that the appropriation is independent of title to or
possession of any lands.

§ 64. Distmgnifthed from Right to a Ditch.— The water right
is entirely distinct from the right to tne ditch in which the water
is conveyed. The latter is an easement. The former is an in-
corporeal hereditament sui generis^ and not an easement. The
water right and ditch right may be conveyed separately, or the
one may exist without the other. An abandonment of one does
not necessarily include abandonment of the other. ' One may, how-
ever, be appurtenant to the other. The matter is discussed and
cases cited at length later.^^

§ 66. Real Estate.— The right is real estate.^^^^ In Hill v.
Newman,"^ the court says: **Prom 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 ap-
propriation and use of the water. The right to water must be
treated in this State as it has always been treated, as a right
running with the land, and as a corporeal privilege bestowed
upon the occupier or appropriator of the soil; and as such, has
none of the characteristics of mere personalty." The court held
that a justice of the peace has no jurisdiction over an action for
diversion of water because it was an action concerning title to

i«7 To the 57th Congress, Ist Sess. McLear v. Hapgood,,85 Cal. 555, 24

(Cong. Eec., vol. 35, pp. 85, 80). Pac. 788; MaylSriy v. Alhambni etc.

168 Ninth Session held at Chicago, Co., 126 Cal. 444, 54 Pac. 530, 58

Illinois, November 21-24, 1900. Pac. 68; Pomeroy on Biparian Bights,

i« See in general, Nevada etc. Co. sec. 57. See in^fra, sec. 160 et »eq.
V. Kidd, 37 Cal. 282, 309; Zimmler no See Cal. Civ. Code, see* 801.

V. San Luis etc. Co., 57 Cal. 221; "i 5 Cal. 446, 63 Am. Dec.. 140.

§ 65 NATUBE OF THE BIGHT OF APPBOPEIATION. 127

real estate."^ The statute of frauds, coneeming conveyances of
real estate, applies to it.^''^ The statute of limitations concerning
land applies to it.^''^ So do the recording statutes, as between
saccessive conveyances.^''^ The right to have water flow from a
river into a ditch is real property.^'* A wrongful diversion of
water is an injury to real property.^'''' The right to take water
from a river and conduct it to a tract of land is realty.^''® The
right to have water flow through a pipe from a reservoir to and
upon a tract of land is an appurtenance to the land.^^ An un>
divided interest in a ditch and in the right to water flowing there-
in is real property.^®^ And where one person has a right to the
flow of water and another has the right to have a part of such water
flow to his land for its irrigation, the right of the latter is real
property.*®* An action to quiet title as for real property is
proper.*® 'In Idaho water rights are declared real estate by stat-
ute.*® As it is real property, an action to quiet title thereto can-
not be brought by an administrator.*" It may be acquired by
descent, as real property.**^ It is a vested right, protected by the
Constitution,*^ and capable of estimation in money.*®''

That the usufructuary right to the use and flow of water by
appropriation is real property is fully recognized.*®®

172 A somewhat similar deeision ap- lai Dorris v. Sulliran, 90 Gal. 286,

peara in Paeifie etc. Club v. Saiisalito 27 Pac. 216 ; Farmers ' etc. Co. v. New

ete. Co., 98 CSal. 487, 33 Pac. 322. Hampshire etc. Co. (Colo., July 1,

ira Griseza v. Terwilliger, 144 Cal. 1907), 93 Pac. 290. See, also, Stan-

456, 77 Pac. 1034; Smith v. O'Hara, wla«9 Water Co. y. Bachman (Oal.

43 Cal. 371; Oneto v. Bestano, 78 ®"P^ i*^/3 l®^®)' ^^ ?»«\S?8; ,«

Cal. 374, 20 Pac. 743; Dorris v. Sul- ^^ f s^^^^a^^l' ?^k^' M<>"*«^*'' ^2

UvM on PaI 27ft 27 ViLf 216- ^olo. 420, 76 Fac. 1050.

hIJL ^- aiVr oai o7 T>.; *^ I^^ ^v- Stats. 1887, sec.

Hayes v. Fine, 91 OaL 391, 27 Pac. 2825; Boise etc. Co. v. Stewart, 10

":• „ , ,. r. ^ Idaho, 38, 77 Pac. 32 ; Ada etc. Co. V.

iw Yankee Jim etc. Co. v. Crary, Farmers' etc. Co., 5 Idaho, 793, 51

25 Cal. 504, 85 Am. Dec. 145, and see Pac. 990, 40 L. B. A. 485.

\nfra, sec. 240 et seq. 184 Traveler's Ins. Co. ▼. Childs, 25

ira Partridge v. McKinney, 10 Cal. Colo. 360, 54 Pac: 1020.

181; Lyles v. Perrin, 119 Cal. 264, 51 186 Hall v. Blackman, 8 Idaho, 272,

Pm. 332. 68 Pac. 19.

m Lower Kings River W. D. Co. v. lae Town of Sterling v. Pawnee etc.

Kings Biver & F. C. Co., 60 Cal. 410. Co, (Colo.), 94 Pac. 431. See, aUo,

1^ Last Chance etc. Co. v. Emi- Lamar etc. Co. v. County etc. Co., 26

giant D. Co., 129 CaL 278, 61 Pac. Colo. 370, 58 Pac. 600; Mohl v. Lamar

S60. ' etc. Co. (Colo.), 128 Fed. 776.

JW South Tule etc. Co. v. Bang, 144 is^ Wahl Co. v. Lewiston Co. (Ida-

CaL 454, 77 Pac. 1032. ho), 158 Fed. 137.

™ Standard v. Bound Valley Co., iss As to when the corpus of vraiter

77 GblL 403, 19 Pac. 689. is personal property, see infra, sees.

wo Hayes v. Fine, 91 Cal. 398, 27 153, 154.

Pac 772. See, also, as to real property, Fudic-

128

THE LAW OF APPBOPBIATION.

fS 65^

§ 66. Hiitarioally Baaed on PoaaeiaioiL — ^The law of appro-
priation arose out of the idea of taking possession of streams
on public land, under the same theory as taking posseasion of
mining claims. It was called a '' possessory right," though to-day
elevated to the dignity of a fee. This possession is acquired by di-
version of the stream, so that the right was regarded as complete
on diversion.^^ And likewise, the capacity of the ditch was taken
as prima facie the amount of the appropriation, as being the amount
'in possession ;^^ though a failure of use will be an abandonment or
forfeiture to the extent of such f ailure.^'^

§ 67. Conditional. — ^The right is conditional. This is a fea-
ture in common with all possessory rights on the public domain.
In the early days the possessor disclaimed any title in the publie
land itself; he insisted only on the right to go upon it and cany
on his enterprises there. The license or permission given by the
tacit consent of the United States was the thing emphasized. And
while possessory rights have acquired the dignity of real estate
to-day, they retain also the impress of their origin. A water
right of appropriation is spoken of as a privilege, license or fran-
chise.^^ And some recent irrigation codes name the final cer-

tificate issued to the appropriator a ''license." This franchise,
privilege or license is conditioned on beneficial use of the water;
a failure of this condition causes a loss of the right.^*'

§ 68. An Incorporeal Hereditament. — ^It is not within the
term '*land."^^ It is jiot subordinate to any land, but inde-
pendent thereof and of equal dignity therewith, and hence not an

kar V. East BiverHide Irr. Dist., 109
Oal. 29, 41 Pac. 1024; Santa Paula
etc. Co. ▼. Peralta. 113 Cal. 38, 45
Pae. 168; South Tule etc. Go. ▼. King,
144 Cal. 450. 454, fl Pac. 1032; Tal-
eott V. Mastin, 20 Colo. App. 488, 79
Pac. 973; Bumham v. Freeman, 11
Colo. 601, 19 Pac. 761; Rickey, etc.
Co. V. MiUer, 152 Fed. 14.

Irrigation works are exempt from
taxation in Arizona (Stats. 1907, p.
170), New Mexico (Stets. 1905, p.
270, sec. 8), and Colorado to some ex-
tent. Const., art. 16, sec. 3. See, also.
Irrigation Co. v. Ogden City, 8 Utah,
494, 33 Pac. 135, regarding taxation.

189 See infra, 9§ 128, 137, "Br
completion* is meant conducting tbd
waters to the place of intended use."
Cal. Civ. Code, sec. 1417.

iw Infra, sec. 167.

191 Infra, sees. 168-176.

192 E. g,. Conger v. Weaver, 6 CaL
548, 558, 65 Anu Dec. 528; Mitchell
V. Amador Canal etc. Co., 75 OaL 464,
483, 17 Pae. 246; Natoma etc Water
Co. V. Hancock, 101 CaL 42, 31 Pac.
112, 35 Pac. 334.

193 Infra, sec. 168 et seq., and sec.
229 et seq.

194 Mt. Carmel Fruit Co. v. Web-
ster, 140 Cal. 183, 73 Pac. 826.

§69

NATUBE OP THE BiaST OF APPBOPEIATION.

129

easement.*** Often it is called an easement,*'^ but it is submitted
that such is not the better view.**^ Being but a usufruct, or
privilege of use, it is incorporeal.**® It is held to be incorporeal
in Swift V. Goodrich,** deciding consequently that contracts con-
cerning water rights cannot cr^te the relation of landlord and
tenant, as, being incorporeal, no tenancy can exist therein.^^

§ 69. Defiioition. — ^From these characteristics, the following
definition, it is suggested, may be deduced :
' A water right of appropriation is real estate, independent of
the ditch for carrying the water, and independent of ownership
or possession of any land, whereby the appropriator is granted
by the government the exclusive use of the water anywhere
so long as he applies it to any beneficial purpose ; and it is an in-
corporeal hereditament, solely usufructuary, not conferring owner-
ship in the corpus of the water or in the channel of the stream.

1% Yale on Mining Claims and
Water Bights, 204, 215; and eases
dted Ufra, sec 150 et sm.

i» £. g^ Smith v. Hawkins, 110
CaL 122, 42 Pae. 453 ; Smith v. Denlff,
24 Mont 20, 81 Am. St. Bep. 408, 60
Pm. 398, 50 U B. A. 741 ; Cal. Qv.
Code, 801.

1^ See, also, Lux v. Haggin, 69
CiL 255, 298, 10 Pac. 674.

u» Is HiU ▼. Newman, 5 CaL 445,
63 Am. Dec. 140, quoted in a preeed-
Water Bights — 0

ing section, it is called a corporeal
hereditament. See Tale on Mining
Claims and Water Bights, pp. 204,
215.

iw 70 Cal. 103, 11 Pac. 561.

200 Was called incorporeal in Bickey
etc. Co. V. Miller, 152 Fed. 14; Frank
V. Hieks, 4 Wyo. 002, 35 Pac. 47^, 481.
See, also, Gutheil etc. Co. v. Montclair,
32 Colo. 420, 76 Pac. 1050, holding it
unnecessary in the case to decide
whether corporeal or incorporeal.

130 THE LAW OF APPBOPBIATION. § 70

CHAPTER IV.

WHO CAN APPROPRIATE.

9 70. Penons in generaL

§ 71. Tenants in common. .

9 72. Biparian owners.

S 73. Corporations.

9 74. Government reservations.

§ 70. PenMms in CtaneraL — ^There is no restriction respecting
the persons who can appropriate.

''The silent acquiescence with which the government, prior
to the act of Congress of July 26, 1866, regarded the appropria-
tion of water on its lands, as well as the express recognitioD
extended hy that statute to rights so acquired, did not discrimi-
nate between Trojan and Tyrian — citizens and aliens; married
women and minors were, in general, not competent to pre-empt
land, but we have never heard that they might not make a valid
appropriation of water; the tests of such appropriation were
priority of possession and beneficial use ; ^ and title, or the right
to acquire title, in the place of intended use has never been a
necessary element in the ownership of appropriated water. Be-
sides, since' the prior appropriation of water is a mode of acquir-
ing a right in real property by purchase,^ the alienage of the de-
fendant was a matter between him and the government, and,
if it were admitted that as against the government, he could have
no valid right in the water, yet until 'oflSce found,' it is con-
ceived that private individuals were not at liberty to treat his
appropriation as void of effect, or the water itself as still open
to another to take.'' ^ In the case from which this is quoted^ an

1 Citing Maoris v. BickneU, 7 Cal. 3 Citing Norris v. Hoyt, 18 CaL
261, 68 Am. Dec. 257; Davis v. Gale, 217; Bacouillat v. Sansevain, 32 CaL
32 Cal. 26, 91 Am. Dec. 554; De 376; Lobdell v. HaU, 3 Nev. 516. '
Neeochea v. Curtis, 80 CaL 397, 20 ^ Santa Paula Water Works ▼. Per-
Pae. 563, 22 Pae. 198. alto, 113 CaL 38, 43, 45 Pae. 168.

2 Citing Hill v. Newman, 5 Cal. 445,
63 Am. Dec. 140.

§71

WHO CAN APPBOPBIATE.

131

appropriation by an alien was held good.^ A lessee of land may
be an appropriator of water for irrigating that land.^

Appropriations by trespassers upon land of another do not
make snch water right appurtenant to the land upon which it is
wrongfuUy usedJ The trespasser can change the use made by
him of water thereon to other real property.® But the use of
water upon land to which it is already appurtenant before the
trespass, by the trespasser, will not dissever the water from the
land, nor confer any right in the trespasser to divert it or sell
it after being lawfully ejected from the land.^

§ 71. Tenants in Common. — Where several join in making an
appropriation, they will usually be tenants in conunon of the
water right.^*^ There is this peculiarity arising out of such a
tenure, that the water right is held not to be in its nature subject
to actual partition; and on a partition suit the only separation

of the interests of the tenants in common that can be made is
by ordering a sale and a division of the proceeds.^^

Where two join in a diversion, but are to use the water on
their separate lands, it has been held that there is not such unity
of user as will constitute tenancy in common.^^

Use by one tenant in common of more than his share may be
enjoined,** but it does not become adyerse so as to start prescrip-
tion until notice thereof is brought home to the other ; ^* likewise
where he sells more than his undivided interest, actual ouster and

3 Accord liobdell ▼. HaU, 3 Nev.
507, upholding an appropriation by an
Indjan. Long on Irrigation, sec. 35;
Kinney on Lrngation, sees. 154, 155.

> Sajre y. Johnson, 33 Mont. 15, 81
Paie. 389; Seaward v. Pacific etc. Go.
(Or.), 88 Pae. 063; Cooper v. Shan-
non (Colo.), 85 Pac 175 (dictum).

7 Smith v. Logan, 18 Nev. 149, 1
Piac 678, approT^ in Alta etc. Co. v.
Hancoek^85 Cal. 219, 24 Pac. 645, 20
Am. St. Bep. ^17.

8. Seaward v. Pacific etc. Co. (Or.),
88 Pae. 963, miflstatinff the Alta case.

0 Alta etc. Co. v. Hancock. 85 Cal.
219, 20 Am. St. Bep. 217, 24 Pac. 645.

10 Abel V. Love, 17 Cal. 233 ; Brad-
ley T. Harkness, 26 Cal. 69; Lytle
t>e«k etc. Co. v. Perdew, 65 Cai 447,
4 Pac. 426; Frey v. Lowden, 70 CJal.
550, 11 Pac. 838; Griseza v. Terwilli-
ger, 144 Cal. 456, 77 Pac. 1034; and
we CaL Civ. Code, sec. 842.

n McGillivray v. Evans, 27 Cal. 92;
Lorenz v. Jacobs, 59 Cal. 262; Long
on Irrigation, sec. 75. The cases here
cited laid stress upon the fact that the
appropriation was for mining. In a
recent case, Verdugo W. Co. v. Ver-
dugo (CaL, Jan. 23, 1908), 93 Pac.
1021, dealing with irrigation and with
a riparian right, actual partition and
apportionment was upheld. McGilli-
vray V. Evans has been cited approv-
ingly in Laniers v. Henk, 73 HI. 411,
24 Am. St. Bep. 267; AUard v. Carle-
ton, 64 N. H. 25; Brown v. Cooper,
^8 Iowa, 455, 60 Am. St. Bep. 197;
Head v. Amoskeag Co.. 113 U. S. 211.

12 City of Telluride v. Davis, 33
Colo. 355, 108 Am. St. Bep. 101, 80
Pac. 1051, sed qu.

18 Lorenz v. Jacobs (Cal.), 3 Pac.
654.

14 Smith V. North Canyon etc. Co.,
16 Utah, 194, 52 Pac. 283.

132

THE LAW OF APPRO PRIATIOX.

§ '2

notice are necessary to constitate adverse use thereunder.*^ Non-
use by one does not diminish his .right in favor of the others.**
The wrongful acts or use of one do not give the other a right
to dig a new ditch and take all.^^ Each must consider seepage
and evaporation in the amount he is entitled to divert,^^ and each
may alone sue a trespasser to enjoin wrongdoing,** or may sell
his interest without the consent of the others.*

Voluntary unincorporated associations of all ow^iers along: a
stream constitute them tenants in common,^* and consent is not
necessary to a sale of the interest of any one of them.*^ But if
they incorporate, obtaining a majority 'of all owners into the cor-
poration, they are not tenants in common with the minority who
do not come in, and have no right to control or regulate the use
of such minority.^

Special statutes sometimes govern disputes between tenants
in common. In Wyoming there is a special procedure for the
appointment of a distributor in disputes between them. On a
verified petition to the district court he is appointed by the court,
and has an official capacity with exclusive control during the
pleasure of the court ; ^* but this procedure is not exclusive of
other procedure whereby the court may deal with such disputes
under general law.^ In California a statute^ provides for con-
tribution between co-owners of a ditch for work on the ditch,
but this applies only to work which is on a part of the ditch of
which the party from whom contribution is demanded has bene-
ficial use, and the work must benefit him ; so that work done in
fluming and cementing below his point of diversion is not within
the statute.^

§ 72. Riparian Owners. — ^Before the common-law rights of
riparian proprietors were litigated under the California doc-

10 Beers v. Sharpe, 44 Or. 386, 75
Pac. 717.

ifl Ibid.

17 Amett V. Linhart, 21 Colo. 188,
40 Pae. 355.

IS Anderson v. Cook, 25 Moat. 330,

64 Pac. 873.

19 Lytle Creek etc Co. v. Perdew,

65 Cal. 447, 4 Pae. 426.

20 BiggB ▼. Utah etc. Co., 7 Ariz.
331, 64 Pac. 494.

21 Smith V. North Canyon etc. Co.,
16 Utah, 194, 52 Pbc. 283.

22 BiflWB V, Utah etc 'C6., 7 Ariz.
331, 64 Pac 494.

23 Bartholomew t. f^ay^te etc Co.
(Utah), 86 Pac 481.

24 Mau V. Stoner (Wyo.), 87 Pac
484.*

25 Stoner v. Mau, 11 Wyo. 366, 72
Pac. 193, 73 Pac 548.

26 Stats. 1889, p. 202, c 168 (Gv.
Code, sees. 842, 843).

27 Arroyo etc Co. ▼. Beqnette, 149
Oil. 543, 87 Pac 10.

§ 72 WaO OAl? APPBOPBLAlTB. J33

trine, cases involying ripariau owners were frequently rested on
aetaal appropriations made by them; there was no attempt made
to restrict their right to be appropriators.^ And in States where
riparian rights are not recognized, the only way a riparian owner
can get a water supply is by an appropriation. But when
riparian rights reappeared in the front in California, the ques-
tion arose whether the owner of those rights was excluded from
getting additional rights by appropriation on the same or on a
different stream.

Trouble has arisen over another question: that is, whether an
appropriation can be made on the riparian land itself — a differ-
ent question, which must be distinguished from this, and will be
considered later.^ Being made on other and public land it is
settled in California that there is nothing in the character of a
riparian owner that precludes him from making an appropria-
tion im public land, like anyone else. The two rights may exist
together, and are not necessarily inconsistent, and need not
merge. In Lux v. Haggin, it. was said: '^It is admitted that a
single riparian proprietor would stand on the same footing as one
not such. ' '

This was firmly laid down in Healy v. Woodruff,*^ and ap-
proved (on this point) in Cave v. Tylcr.*^ In Healy v. Woodruff,
the riparian proprietor appropriated extra water from the same
stream on public land.'^ In Smith v. Hawkins** the court
reached the same result where the defendant was awarded one
hundred inches as an appropriator and an additional amount as
riparian right.** In Van. Bibber v. Hilton,** all the parties to
the action were riparian proprietors and the defendants were
also appropriators. The trial court limited the right of the latter
to the amount claimed as appropriators. Judgment was reversed
by the supreme court for not also making some allowance as
riparian right. «

A riparian proprietor may be an appropriator; especially if
he insists only on his appropriation and not on his riparian

^ 3?. ff., Anaheim ete. Co. v. Semi- 32' See quotation from this case in-

tropic etc. Co., 64 Gal. 185, 30 Pac. fra, c. V; Ealer v. Campbell, 13 Or.

623; Wilcox t. Hauach, 64 Cal. 641, 3 596, 11 Pac. 301.

Pm. 108. 83 127 Cal. 119, 59 Pac. 295.

2> See. 78 et seq., infra. M And see Edgar v. Stevenson, 70

» 97 CaL 464, 32 Pac. 528. Cal. 286, 11 Pac. 704.

« 1J3 CaL 566, 65 Pac. 1089. 38 84 Cal. 585, 24 Pac. 308, 598.

184 THE LAW OF APPROPRIATION. § 73

rights.^ In a recent case the right of a riparian proprietor to
make an appropriation was recognized without question.'' And
in another, plaintiff's right to an injunction was upheld in the
altematiYe."^ A riparian proprietor has been given three hun-
dred inches as appropriator in addition to his rights as riparian
owner.'*

The decision in Senior v. Anderson ^ is a necessary corollary to
this. In that case an appropriation had been made of all the
water reasonably needed for use on certain riparian land, and the
appropriator later purchased the land from the United States.
No additional water could be taken by her, it was held; she ac-
quired none additional as riparian right. The decision rests on
the fact that she had all she could reasonably use already, and
to give her more would be to waste it, and waste is allowed
under neither rule.^^ Had there been use for additional water,
there ia nothing in the case that would have prevented her tak-
ing it as a riparian owner, though she was already an appro-
priator. The combined right may. exist, so long as there is no re-
sulting waste.^

§ 78. Oorporations. — ^A corporation may appropriate water,
and corporations frequently do.^ A city owning water rights
as a municipal corporation cannot interfere with private appro-
priators merely because it is a cit;^.^ Some cities have succeeded
to the old rights of Mexican pueblos, notably Los Angeles, but
this right attaches to few cities.^ A corporation organized under
the laws of a Territory may be an appropriator, as well as one
organized under the laws of a State.^ A foreign corporation
cannot be an appropriator without complying with the laws of the
State by filing articles.*^

86 Seaward v. Duncan, 47 Or. 640, contra. See wpra, Part II, e.
88 Pac. 1048. VH.

87 Duckworth' ▼. WatsonviUe Water ^ ** *• ff-p ^Montecito etc ▼. Santa
Co., 150 Cal. 520, 89 Pac. 338. Barbara, 144 CW. 578, 77 Pfcc. 1113;

1908), 94 Pac. 424. j,^^ ggg^ ^ g^^ 2^

89 Ison V. Nelaon Min. Co., 47 Fed. 44 Santa Barbara v. Goidd, liS Cat

IW. 421, 77 Pac. 151.

40 130 Cal 290, 296, 62 Pac. 563. ^ Ante, sec. 2.^

41 Accord Low y. Schaffer, 24 Or. 46 Ghitierrea ▼. Albucjoerque eto.
239, 83 Pac. 678. Co., 188 U. S. 655, 47 L. ed. 588, 28

42 Accord Famham on Waters, sec. Sup. Ct. Bep. 888.

660; Kinney on Irrigation, sees. 4T TeUuride etc. Co. y. Bio Grande
281, 282; criticising Pomeroy on Bi- etc. Co., 187 U. 8. 582, 583, 47 L
parian Bights, sec. 133, which was ed. 313, 32 Sup. Ct. Bep. 178.

J 74

WHO CAN APPBOPBIATE.

135

A corporation may appropriate water, as an appropriator. It
need not own any land nor be a mere combination of land-
owners;^ and where it is a combination of some landowners
or priyate appropriators, it has no right to control or regulate
the use of owners not in the corporation, though those in the cor-
poration are a majority of all users upon the stream.^ In the
arid States, the corporation is considered an appropriator only in
a qualified way, the consumers whom it supplies being regarded
as owning the water rights in the stream for most purposes ; but
in California, not only are the consumers not appropriators, but
even appropriators who incorporate, conveying their rights to a
co-operative corporation, cease to be appropriators.^ This ques-
tion as to whether consumers from corporations are appro-
priators is further considered hereafter; as is also the question
of the rights and duties of corporations as quasi public servants.'^

Articles of incorporation to divert water do not include build-
ing of reservoirs to store it.^ A director may make a separate
appropriation.*^ A city may have power under its charter (and
Los Angeles has such power) to own its own water plant, but
must not allow waste.^ A city may sell its water rights to a water
company.**

I 71 Oovemment Seaervations, etc. — Of waters on the public
domain, the United States is, under the California doctrine, the
sole owner and the establishment of a military reservation along a
stream adds no new title. If the reservation does actually use the
water, it does not change the title of the United States thereto,
which is plenary in the absence of such use, but merely reserves
the water used from acquisition by private parties during such
use and to the extent thereof. It does not become an appcopria-

^ Gutierres ▼. Albuquerque ete.
Co^ 18S U. 8. 546, 555, 47 L. ed.
588, 23 Sop. Ct. Bep. 388.

* Bartholomew ▼. Fayette ete. Co.
(Utah), 86 P^. 481.

80 FoQer v. Azuza ete. Co., 188
(U. 204, 71 Pae. 98.

tt See infra. Part V.

B Seetoj T. Huntiiiff ete. Aasn., 27
Utah, 179, 75 Pa45. 867.

» Ftan Inv. Co. v. Alta ete. Co.,
28 Colo. 408, 65 Pae. 28.

M Fellows y. Loe Angeles, 161 Cal.
52, 90 Pae. 187. Se«, also, Ajlmore
V. Citj of Seattle (Wash.), 92 Pae.
932. Likewise, I^Madena. South
Pasadena ▼. Pasadena L. & W. Co.
(CaL Sup., Jan. 2, 1908), 93 Pae.
490.

65 Brummitt v. Ogden W. W. Co.
(Utah), 93 Pae. 828. See, also, Cily
of Colo. Springs y. Colorado Cii^r
(Colo.), 94 Pae. 316.

138

THE LAW OF APPBOPBIATION.

I 74

or that shall be patented hereafter. In other words, aU priyate
lands hereafter patented, or patented sinoe 1890, are aabject to go?-
emment ditch building.^ Revised Statutes, 2339, 2340, do not

refer to government ditches. The government right is contained
in the act above cited.^

66 Oreen t. Wilhite (Idaho), 93
Pae. 971. AMord Greea t. WlUdte,
157 Fed. .

91 Ihid.

§ 75 WHEBE AN APPBOPBIATION CAN BE MADE 139

CHAPTER V,

WHERE AN APPBOPBIATION CAN BE MADE.

A. ON PUBLIC LAND.

75. The first appropriationB were all on public land.

76. State lands.

77. Presamption that lands are pnblie.

B. ON PBIVATB LAND.

78. Introductory.

79. Conflicting views.

80. The principle involyed is that of access.

C. COLOBADO DOCTBTNB.

81. Hostile appropriation.

82. With consent of the landowner, or by the landowner himself, or
against strangers to the landowner.

83. By condemning a right of entry or right of way.

D. CALIFOBNIA DOCTBINE.

84. Conflicting expressions.

85. Hostile appropriation.

86. With consent of the landowner or by the landowner himself or
against strangers to the landowner.

87. By condemnation.

88. Beview of decisions.

89. "Beeapitnlation.
89a. Qoyemment ditches on private land.

A. ON PUBLIC LAND.

§ 76. The First AppropriationB Were All on Pnblio LancU.-^

When the miners arrived in California, but little of the lands
composing the State had passed into private hands. When the
mines were located and the early customs established, title to the
land had passed to the United States, by treaty, from Mexico. The
license from the United States to appropriate the water was
first presumed from -acquiescence therein.^ It is now expressly
granted by sections 2339 and 2340 of the Revised Statutes of the

1 Ante, c. I.

140

THE LAW OP APPBOPRIATION.

|7«

United States.^ '*Por a long period the general government
stood silently by and allowed its citizens to occupy a great part
of its public domain in California, and to locate and hold mining
claims, water rights, etc., according to sneh rules as could be made
applicable to the peculiar situation ; and when there were contests
between hostile claimants, the courts were compelled to decide
them without reference to the ownership of the govemment, as it
was not urged or presented. In this way — ^from 1849 to 1866 —
a system had grown up under which the rights of locators on the
public domain, as between themselves, were determined, which
left out of view the paramount title of the government. The acts
of 1866 and 1870 were intended merely to expressly recognize
and ratify the system."' It is usually assumed that the appro-
priator always seeks to make an appropriation on public lands
only. No question is any longer raised to hia right to do bo*

Rights of way for canals and ditches may be acquired over
Indian reservations by act of Congress,' and over a forest re-
serve.^ Upon this matter reference is made to a later section."^

With regard to waters on government reservations reference is
made to a preceding section.^

§ 76. * State I^inds. — Of certain lands the State is the owner
and the State has likewise made the law of appropriation apply

2 Ante, sees. 11, 32, 33.

3 Cave V. Tyler, 133 Cal. 566, 65
Pac. 1089; similarly, Broder v. Na-
toma Water Co., 101 U. 8. 274, 25
L. ed. 790; Osgood v. Eldorado Wa-
ter Co., 56 Gal. 571.

4 The provisions of the statutes of
1866 and 1870 referred to are those
now incorporated in sections 2339
and 2340, 'Revised Statutes, and are
as follows:

Revised Statutee, seetion 2339:
''Whenever, by priority of possession,
rights to the use of water for min-
ing, agricultural, manufaetnring, or
other purposes, have vested and ac-
crued, and the same are recognised
and acknowledged by the local cus-
toms, laws, and the decisions of
courts, the possessors and ownera of
such vested righta shall be maintained
and protected in the same; and the
right of way for the eonstruction of
ditches and canals for the purposes

herein specified is aeknowledged and
confirmed; but whenever any penon,
in the construction of any ditch or
canal, injures or damages the posses-
sion of any settler on the pnblic do-
main, the party eonimittiBg rtlch in-
jury or damage^ shaU be liiU»le to the
party injured for such injury or dam-
ages. * '

Revised Statutes, section 2340:
I 'AH patents granted, or pre-emption
or heiDMtcadB allowed, shall be snb-
ject to any vested and accrued water
rights, or rights to ditches and reser-
voirs used in ecmneetlon wiA sueh
water rights, as may have been ac-
quired under or recognised by the
preceding seetion."

s March 3, 1891. 35 Land Dec
550; United States v. Conrad Inv.
Co., 156 Fed. 131.

6 A. C. Feb. 1, 1905.

7 Infray sec. 149a.

8 Supra, sec. 74.

§{ 77, 78 WHEBE AN APPROPRIATION CAN BB MADE.

141

to them in California.^ In other States under similar statutes,
the law has been deelared to be the same.'^ Similar statutory pro-
visions exist in most of the other States.

Swamp lan<ls, an important class of State lands, are dealt with
by speeial statutes.^^

§ 77. Presomptton that Landa $at% PuUie. — ^Formerly this pre-
ponderance of pnblie lands in fact gare rise to a presumption
of law that lands were publie, and the party claiming that the
lands in suit were priyate had the burden- of proof .^' But there
is no such presumption to-day for an appropriator to reij on.^^
To-day the larger part of the lands in California and mu^ of
the land in other States is no longer public, but haa passed
into priTate hands.*^ Such lands, howcTer, as are privately heid
under possessory rights, such as unpatented mining locations, or con-
ditional railway grants, may be forfeited or abandoned ; they then
again become part of the public domain, as vacant public land,
and appropriations of water may be made thereon.^^ When an
Indian reservation is thrown open to settlement, it becomes
vacant public land for this purpose.^®

B. ON PRIVATE LAND.

§ 78. Most of the land in California and much of the land
in other States has to-day paased into private ownership. The
question how far an a]^ropriation of water may be made thereon
is of mueh importance. In the early daya, when the land was all

• CiT. Code, sees. 1410-1422; Dux
V. Haggiii, «9 GaL 265, ID Pae. 674;
affirmed in Wood v. Etiwanda etc.
Co., 122 Oil. 152. 158, 54 Pae. 726;
Pomeroy on Bipamjn Bights, tee. 29.

10 Smith V. Dennilt, 24 Mont. 20,
81 Am. St. Bep. 408, 60 Pae. 398,
50 li. B. A.. 741; Gaxson y. Gentner,
33 Or. 512, 52 Pae. 506, 43 L. B. A.
130; ParkexByille ete. Diet. v. Wat-
tier (Or.), 86 Pafi. 775. See Ison
T. Nelson Mng. Co., 47 Fed. 199.

" Infra; sec. 103.

12 Bmrdge y. Smith, 14 CaL 380 ;
Smith y. Doe, 15 CaL 100. See Pome-
xoj on Biparian Bights, sec. 93.

'3 Santa Cruz y. Enrigfat, 95 Cal.

105, 30 Ptic. 197; Oaye y. Tylw, 183
Cal. 566, 65 Pae. 1089. Bat see Na-
toma etc. Co. y. Hancock, 101 Cal.
42, 53, Bl Ptic. 112, 35 Pae. 334;
and People y. Truckee etc Co., 116
Cal. 397, 400, 58 Am. St. Bep. 183,
48 Pae. 374, 39 L. B. A. 5S1.

14 It is usoallx said that no appro-
priation may be made thereon. In-
fra, sec. 378 et .seq.

15 San Jose W.. Co. y. San Jose
Land Co., 189 TJ. S. 177, 47 Lu ed.
765,. 23 Sup. Ct. Bep. 487; San Di-
mes etc. Co. y. San Jose etc. Co.,
142 Cal. 583, 76 Pae. 1128.

16 Morris y. Bean (Mont.)^ ^146
Fed. 432. See supra, sec. 74.

142 THE LAW OF APPBOPBIATION. § 79

public, the question was not mooted, and it was assumed that all
appropriations were made and could be made on public land only.

§ 79. Conflicting Views.— The original cases from which the
law of appropriation arose dealt with the conditions of the times,
and in those early times almost the whole West was public
domain, and the diversions made were on the public domain. As
the land became settled cases arose where the point of diversion
was on private land ; and, following the two theories of the law
of appropriation, divergent views were expressed under the Cali-
fornia and Colorado doctrines as to the validity of appropriations
so made. The rule is, however, we believe, the same to-day under
both systems, despite the different theory of law as to rights
in water ; for it is not a question of rights in water, but of rights
in land.

Frequently cases under the California doctrine assert that ap-
propriation can never be made on private land. Under the
California doctrine it is usually said that appropriations can
be made only on public land. '^The law is well settled that the
doctrine of appropriation under said statutes [Desert Land Act
of 1877] which is recognized and protected by section 2339 of
the Revised Statutes applies only to public lands and waters of the
United States." " And again: ** These rules, however, were con-
fined to the public lands, and are so confined at the present time
in California, Oregon, and Washington."*® And another:
"Moreover, the doctrine of appropriation applies only to public
lands, and when such lands cease to be public and become private
property it is no longer applicable."**^ Likewise: **In other
words, it is held under that doctrine that the rules of prior ap-
propriation, founded upon local customs and laws, and ratified
by congressional legislation, are confined in their operation to the
public domain of the United States."^ In Sander v. Wilson^*
the court states Benton v. Johnco^^ as holding **that the doc-
trine of appropriation applied only to public lands and that, when

17 Winters v. United States (C. 277, 61 Am. St. Bep. 912, 49 Pfcc
C. A.), 143 Ted. 740. See. also, S. 498, 39 L. B. A. 107.

C, 28 U. S. Sup. Ct. Rep. 208. 20 WiUey v. Decker, 11 Wyo. 496,

18 Meng V. CoflFey, 67 Neb. 500, l60 Am. St. R^. 939, 73 Pac. 210.
108 Am. St. Rep. 697, 93 N. W. 715, 21 34 Wash. 659, 76 Pac. 281.

60 L. R. A. 910. 22 17 Wash. 277, 61 Am. St. Bep.

i» Benton v. Johncox, 17 Wash. 912, 49 Pac. 498, 39 L. B. A. 107.

{ 79 WHEBE AN APPBOPBIATION CAN BlB MADE. 143

sQcli lands ceased to be public, and became private property, it
was no longer applicable. ' ' In Cave v. Tyler ® it was said : * * In
all the eases to which we have referred, the diversion was upon
the public domain," and held that the law requires it to be so.^
While the cases under the California doctrine thus frequently
asserted that an appropriation could never be made on private
land, early cases under the Colorado doctrine went to exactly
the opposite extreme and held that an appropriation could always
be made on private land, even against the will of the landowner.
The first case in Colorado upon waters involved this point of
violating private land by irrigators ; the case of Tunker v.
Nichols.^ In this case the three judges gave separate opinions,
as follows: ''But here the law has made provision for this
necessity by withholding from the landowner the absolute
dominion of his estate, which would enable him to deny the right
of others to enter upon it for the purpose of obtaining needed sup-
plies of water. .... It may be said that all lands are held in
subordination to the dominant right of others, who must neces-
sarily pass over them to obtain a supply. of water to irrigate
their own lands, and this servitude arises, not by grant, but by
operation of law." Per Hallett, Judge, who seems. to have
thought that Laws of 1861, page 67, Revised Statutes, 363, al-
lowed this without condenmation. But Belford, J., places the
decision on the ground that on the facts there was a license
to build the ditch, which, being acted upon, was irrevocable in
equity, and this was a proper treatment of the case. He adds,
however, some words similar to those above quoted from Judge
Hallett, but in a vein that indicates that he thought it was in
some analogy to eminent domain proceedings: ''The construction
of a ditch for irrigating purposes seems to me to rest on prin-
ciples analogous to those which sustain the right of a private way
over the land of another," but thinks that condenmation proce-
dure may be waived by the acts of the parties, and says was so in
this case; but then again adds that he justifies his decision on the
ground of necessity, though ''I am fully aware that courts should

28 133 Gal. 566, 65 Pae. 1089. sions of the Civil Code is not eon-

24 Compare Duckworth v. WatBon- fined to streams running over public

^e etc. Ck>., 150 CaL 520, 89 Pac. lands of the United States."

338, Baying (dictum): "The right to 25 i Colo. 551.

appropriate water under the provi-

144 THE LAW OF APPBOFBIATION. | 80

be slow to justify their decisions on the gromid of neoeasitjr."
Wells, J., says ^hat the decision should be placed solcij on the
^ound that each landowner has a right of way of necessity
across the land of another to water. (Similar decisions appear
in Schilling v. Bominger,^ and Branagan v. Dulaney.)^
Statutes have been passed to the same effect.^
Another ground on which this universal right of entry on
private land to divert streams for irrigation was given^ as being
that the United States, by sanctioning the law of appropriation,
not only reserved from its land grants 'existing appropriations
and diversions, but also a right of entry for any member of the
public in the future to make appropriations thereafter.

§ 80. The Principle Involyed is That OEf AeoeBS.---The courts
asserting either of the foregoing views have, as will appear here-
after, withdrawn therefrom. Those views were based on the be-
lief that some principle of the law of waters was involved; but
the question is not one of rights in the water, but one of ob*
taining access to the water. The difficulty is solely one of law-
fully obtaining access to the water at the point in question, with-
out violating private rights in the land. Consequently it is the
universal rule to-day that where no actual right of access to
water or of entry or righ.t of way over the private land exiats
in favor of the appropriator, an appropriation cannot be made
against such owner or his privies ; where it does exist, the appro-
priation may be made under the same rules as on public land;
viz., wherever prior rights in the use of the stream (whether of
appropriation under the Colorado doctrine or of either riparian
rights or rights of appropriation under the California doctrine)
are not set up or not disturbed. An appropriation hostile to Ae
owner of the land where the point of diversion lies cannot be
made against him; but it can be made there (so far as the point
of diversion is concerned) with the landowner's consent, or by
cond^nning a right of entry and right of way, or by the land*

ao 4 Colo. 104, 109. sec. 2549; JIfontona, Comp. Stats.

27 8 Colo. 413, 8 Pac. 669. 1887, sec 1240 ; ISwih Dakota, Comp.

28 E. g,, Colorado Const., art. II, Laws 1887, sec. 2030; Waslwagton,
sec. 14. (But see Colorado Const., art. Pierce's 1905 Codes, sec. 5124 et
II, sec. 15, art. XYI, sec. 7; M. A. seq. All these were evidently bor-
S., sees. 2256, 3158, and amendment rowed from Colorado.

XIV of the Constitution of the 29 In Tynon v. Deopain, 22 Colo

United States.) Idaho, Civ. Code, 240, 43 Pac. 1039.

§ 81 WHEEE AN APPBOPBIATION CAN BE MADE. 145

awner himself, or against strangers to the landowner. We be-
lieve these roles are to-daj nnirersal under both the CaUfomia
and Colorado doetrinea.

C. COLORADO DOCTRINE.

§ 81. Hostile Appropriation.— The weight of authority in the
arid States now clearly declares that no appropriation of water
or building of ditches can be made on private land against the
opposition of the ownjer of the land ; and if this be true, Tunker
V. Nichols and its principle are no longer law.

In Crisman v. Heiderer ^ it was held that the decision in Yun-
ker V. Nichols should be confined **to the narrowest limits";
adding, ''it has been well said that the necessity of one man '9
business cannot be made the standard of another man 's right. ' ' ^^
And since the adoption of the constitution this is recognized in
Colorado as a taking of property that can be done only by con-
demnation on eminent domain proceedings, now specially pro-
vided for such cases.^^ In a case construing the law of Colorado,
the United States circuit court of appe€tls says: ''The appellant
owns all the land on both banks of this river. Regardless of
its right to the water, it has the undoubted right to the undis-
turbed and exclusive possession of its land; and the appellees
can divert no water without entering upon and leading it across
this land and committing a continuiug trespass upon it." In-
junction granted,^ adding that nothing in the constitution or
statutes of Colorado gives one the right to make an appropria-
tion against a landowner by trespassing on his land; and the
State courts of Colorado now also so hold.^ In Baldridge v.
Leon etc. Co.*^ it was held that even an act of Congress^ gives
no right over private land, even though filings were approved by

30 5 Caio. 596. 106, 47 Pae. 766; Blake v. Boye

^1 See these eases more fully re- (Ck^o.), 88 Pac. 470; Baldridge t.

ferred to in chapter L Leon etc. Co., 20 Colo. App. 518,

32 Bc^Mso V. QiorgetAa, 20 Colo. 80 Pae. 477; Boglino v. Gioigetta,

^pp. 338, 78 Pae. 612, and Stew- 20 Colo. App. 338, 78 Pae. 612;

•rt ▼. Stevens, 10 Colo. 445, 15 Pac. Stewart v. Stevens, lU Colo. 445, 15

786. Pae. 786.

3S United States etc. Co. t. Qalle- 35 Swpr:

gos, 89 Fed. 770, 32 C. C. A. 470. 86 Of Mareh 3, 1891.

M N^ppel V. Forker, 9 Colo. App.
Water Rigfata— 10

146

THE LAW OP APPBOPBIATION.

5 81

the Secretary of the Interior. Yunker v. Nichols is confined to
the point of executed parol license, which is all it really decided.'^

The case of Tynon v. Despain, above referred to as asserting
a reserved right of entry as a matter of construction of Federal
land grants, was explained away,^ as being decided upon the
fact of priority of the ditch to the time of vesting of the land
grant, and not as permitting an entry subsequent to such vesting,
or as declaring private lands subject to indiscriminate irriga-
tion ditches in the future. Such attempted reservation in favor
of irrigators is similar to the attemptect reservation in the early
California Possessory Act in favor of miners; and the refusal of
the Colorado court to adhere to it is like the refusal of the Cali-
fornia court to give full force to the Possessory Act.** It was
rather a socialistic doctrine, forgetting that we have constitutions
guaranteeing private property rights, to. say that if you want
another man's property badly enough you have only to take
it, or that a court will listen to an argument that you have a
greater desire or necessity to possess my property than I have.
If it is for a public purpose and you pay for it, yes; and that
the law allows to-day.^

The right to be protected in the use of water as an incident to
the land (the riparian right) is refused recognition in Colorado;
but the right to be protected against trespass as an incident to
the ownership of land, while at first cast off with the riparian
right, is now restored to the landowner. It would be a taking
of land without due process of law to permit others to seize rights
of way over it; the California doctrine merely carries this also
to seizing the use of water that is incident to the land.

That an appropriation cannot be made by a hostile entry on
private land is also held in Utah.*^ And in other States gener-

37 Morrison's Mining Bights, 12th
ed., p. 185; Mills on Irrigation, p.
273, note 17.

38 Blake v. Boye (Colo.), 88 Pac.
470.

39 Ante, c. I, see. 0.

40 Infra, e. XV.

41 Seetion 2780, Compiled Laws of
Utah of 1888, provided that a << nat-
ural stream or other natural source
of supply" could be appropriated.
The court construed this to mean one

''flowing or situated upon lands over
which the sovereignty has domain, or
which forms a part of the pubUe
domain, and not to streams or
springs or other waters rising through
percohition upon land after it has
been segregated from the public do-
main and the title thereto has passed
into private ownership." Willow
Creek etc. Co. v. Michaelson, 21
Utah, 248, 81 Am. St Bep. eS7, 60
Pac. 043, 51 L. B. A. 280.

§82

WHEBE AN APPBOPBIATION CAN BE MADE.

147

ally.** The supreme court of the United States held that an ap-
propriator could not build a ditch over a prior located mining
claim, or, if he does, the hydraulic miner may wash it away.^

Such, also, was the civil law,^ and the New Mexico law based
thereon.*^

Concerning the principle of Yunker v. Nichols, which does not
now seem in force anywhere, it is said ^ to have placed a grievous
burden upon the ownership of valley lands because of ''the lia-
bility to which his land is exposed of having ditches or canals con-
structed across it without his consent, for the purpose of conduct-
ing water from the stream to more distant lands." Commenting
upon a statute enacting the principle the same writer says — that it
**i8 invalid seems hardly to admit of doubt."*''

§ 82. With Consent of Landowner or by the Landowner Him-
•elf or Against Strangers to the Landowner. — ^Under the Colorado
doctrine it is obvious from what has been said already that if
the landowner consents to the entry upon his land, the appro-
priation is on the same footing with one on the public land. Like-
wise if he makes an appropriation on his own land. The validity
of the appropriation is in no way aflfected by the fact that the
point of diversion is on private land, since the appropriator may
then lawfully enter thereon and has lawftd access to the stream.
There is nothing in the decisions in the arid States at all to the
contrary.

Likewise the appropriation, is not subject to attack on this
ground by strangers to the landowner. The rights of persons not

« Sterritt V. Young, 14 Wyo. 146,
116 Am. St. Bep. 094, 4 L. B. A.,
K. 8., 169, S2 Pae. 946. Bee, also,
Healy v. Smith, 14 Wyo. 263, 116
Am. St. Bep. 1004. 83 P&e. 583; Note-
ware Y. Sterns, i Mont. 311 (diteh
oTer minmg elaim) ; Toyaho etc. Co.
V. Hntchins, 21 Tex. Civ. App. 274,
52 & W. 101. See infra, see. 83.

48 Jennison v. Kirk, 98 U. S. 453,
25 L. ed. 240. Aeeord Mioee'ne etc.
Co. Y. Jaeobson, 2 Alaska, 573.

^ <<With the understanding that
i^ the acequia shaU ctoss the land
of another, or the crown lands, or
the land common to the inhabitants of
the pueblo, a license from the private
<>wiKr, or from the king, or from the
town eonneil, is indispensable." Es-

criche, ** Acequia*^ — quoted in Lux v.
Haggin, 69 Cal. 255, 10 Pac. 674.

tf In New Mexico Compiled Laws,
section 17 (enacted in 1874^, it was
provided that "all of the inhabitants
of the Territory of New Mexico shall
have the right to construct either pri-
vate or common aeequias, and to 'take
the water for said aeequioB from
wherever they can, with the distinct
understanding to par the owner
through whose land said acequioB have
to pass, a just compensation for the
land used,'' evidently meaning emi-
nent domain condemnation.

M Black's Pomeroy on Water
Bights, p. 222.

47 ihid,, p. 207.

148 THE LAW OF APFBaPKIATION. §§ 88, 84

parties to the suit cannot be litigated nor set up in the suit ; tlie
court must decide the question solely upon the rights of parties
before it. The appropriation cannot be attacked on the ground
that the point of diversion is on private land without having the
owner of that land brought into court and made a party to the
suit."**

§ 83. By OondemniBg a Bight of Entry or Bight of Way. —
Under the decision of the supr^ne court of the United States in
Clark V. Naah,^ more fully considered under the question of
eminent domain, great liberality is allowed the appropriator in
condemning rights of entry and of way in aid of his appropria-
tion. By so doing he is in principle on a footing with one hold-
ing a grant of the right of way from the landowner, or with the
landowner himself. In the States following the Colorado doc-
trine of appropriation, he may then make his appropriation as
though on public land.^

Condemnation proceedings for a right' of way, however, must
be on proper notice and compensation, and a statute authorizing
entry otherwise is unconstitutional.^^

D. THE CALIFORNIA DOCTRINE.

§ 84. Conflicting Expressions. — We have already shown the
prevalence of the expression that, under the California doctrine,
an appropriation never can be made on private land. This is
because it is thought that there is something inherent in the theory
of the California doctrine compelling this.

The question is complicated under the California doctrine by
the fact that the private land, being next the stream, has al-
ready riparian rights; and the notion obtains ^^ that any rights
of appropriation would be merged therein. The matter presents
no such difficulty under the decisions. The ownership of riparian
rights is not the test, and no difficulty arises where the owner
thereof goes on the public land to make his appropriation; the

48 Cases cited infra, sec. 196. ^^ Sterritt v. Young, 14 Wyo. 146,

40 198 U. a 361, 49 L. ed. 1085, i^? ^^' .»*• ^ ^^^1 ^^ ^<^- ^^'

OK fl«« nf TJ^« rt7« 4 Li. B. A., JN. o., 169.

26 Sup. Ct. Rep. 676. ^^ ^ reiarked in Healy v. Wood-

50 Infra, c. XV, Eminent Domain, ^q^ 97 Cal. 464, 32 Pac. 528.

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tvo rifteft mre ]i«t ■Mnn'iiiiihr »fKttSK:t«9t «Dd maj be )w>U by
tlie SUV peoNBL^ M kn^ ae tlie «iesbafd nciu dMS d^ rasatl
ia ww^^etahkemL.^ Tkie difirahj does not ar»f <Nit i^f a lamwr
of ri^toa. bmx out «f tke fact fkat an apprc^priarioii w a ennl
froB the giavLiB»< at. aad kov caa tlie govffn»fnt auke a arrant
to Mnyame am land it dctes dc4 own*

There kav^ bees tiu^ee expreaaioiis bj tbe Calif<iniia eoMiit u|VMi
the sutter tbat are* all moomasient in pnndple. Tvro of tbe
opioioiis vere written by tbe aame jod^.^

In Hcahr t. Woodni:ff«^ an owner of a water riffbt on publie
land later boo^t up pari of tbe lower riparian land lbr\>u|!b
vhieh tbe stream ^owed. Thereafter be sousbt more water as an
af^ropriativ by cnlar^ring. on pablie landL tbe diteh tbroufEb
wfaieh the original appropriation bad been made. Complaint was
made by salraeqoent claimants. The eonrt says: **The faet that
plaintiff w his grantor was a riparian owner does not warrant
the eonelosion that he eoold not be an appropriator — ^there is.
as is said in a play. *no eonsonaney in the sequel." The notion
seems to be, that beeoming a riparian owner estops one, in some
sort of a wa;-. from being an appropriator of water, although there
be no one in existence in whose favor the estoppel can be evoked
.... Coonsel for respondents seems to think that beoausf plain-
tiff's grantor as a riparian owner could have prevent eil subsequent
appropriators from diverting the water above his land and away
from it, therefore he could not divert the water himself: but that
is a confusion of the distinction between mciim and futim. Coun-
sel eomplain that this view gives great advantage to the first
possessor and appropriator of the wat^r of a stream. This is
no doubt true, but it is the advantage which the law gives, and
which necessarily follows prior occupancy and appropriation/*
It will be noticed that the additional diversion was made on pub*
lie land; the court, however, considers riparian ownership of
no importance, and the principles announced would have upheld
an additional appropriation on his own land, so long as the water
came from public land, and no existing claimants were interfered
with, disregarding the fact of private ownership, and remaining
firm in the simple rule of priority.

a Healj v. Woodruff, 97 Cal. 466, m Senior v. Anderaon, 130 Cal. 290,

32 PjAc. 528 ; affirmed on this point 62 Plac. 563. See ante, see. 72.

in Cave v. Tyler, 133 Cal. 566, 65 » Mr. Justice McFarland.

Pac. 1089. M 97 Cal. 464, 82 Pfcc. 629.

150 THE LAW OP APPBOPBIATION. § 84

On the other hand, in Cave v. Tyler,^^ an appropriation was
made in 1853, on private land, while the stream above flowed
entirely through public land. Defendant later acquired title to
the upper land and interfered with the water. The court says:
"By the congressional acts above quoted,*^* the government merely
said that whenever it had acquiesced in asserted possessory rights
on the public domain, which were upheld by local customs and
laws and decisions of the courts, as between the possessors them-
selves, it would treat those possessors as though they had ac-
quired prescriptive rights against the government, and would
recognize such rights whenever afterward granting patents to
any part of its land. When a person went' upon the public do-
main and there diverted the water of a stream running thereon,
he invaded the rights of the government to its own land, and the
government could either resist the invasion or acquiesce in it.
If it adopted the latter course, then the kind of vested and ac-
crued right grew up which the government by the said acts of
Goilgress promised to protect. But when a party on private
land, to which the government has no title, diverts water from a
stream, what vested rights does he acquire in the water in the
upper pdrt of the stream, where it flows through the government
laiidt . Such diversion does not interfere in any way with the
flow of the stream in the land of the upper proprietor; it does
him no injury; it is no invasion of his right; it gives him no
cause of action ; it leaves no field for the play of consent or ac-
quiescence; it never ripens into title by prescription. Under
what local custom or law^ under what 'decisions of the courts,'
was there a 'vested and accrued' right of respondents to all
the water of the stream, up through the public domain to its
head, thus depriving a large section of country above of its source
of fertility? We know of none. In all of the cases to which we
have referred, the diversion was upon the public domain. It
may be well to say — ^although the case is not referred to in the
briefs — ^that there is nothing in Healy V. Woodruff, 97 CaL 464,
at all conflicting with the views above expressed. It was merely
held there that the plaintiff was not prevented from enlarging
his ditch by the fact that since its original construction he had

57 133 Cal. 566, 65 Pac. 1089. 8. 57a A. C. 1866, 1870; Bev. Stats.

C, in 147 Cal. 454, 82 Pac. 64, did 2339, 2340.
not deal with this point.

iS 85,86 .WHEBE AN APPBOPBIATION CAN BE MADE.

151

obtained title from the government to 'a piece of land through
a small portion of which the said Cedar creek (the stream di-
verted) runs.' There was no contention that the diversion and
the ditch were not on the public domain." This case appears .to
be a positive decision that no appropriation can be made on any
private land whatever under any circumstances.

In a still later case it has been said:^ ''The right to appro-
priate water under the provisions of the Civil Code is not con-
fined to streams running ove^ public lands of the United States."^

§ 86. Hostile Appropriation. — ^Beyond a doubt, no appropria-
tion of water can be made on private land against the opposi-
tion of the owner of the land. This we have already shown un-
der the Colorado theory, and it is equally true under any other
theory. An entry upon the land for such purpose is a plain tres-
pass and unlawful, like any trespass on private property. No
rights to the water can be obtained thereby, against the land-
owner.^ An appropriation consisting of a grant from the gov-
ernment cannot be initiated unlawfully by a trespass.®^

We proceed to consider the result when lawful access to the
water has been obtained by consent of the landowner or by con-
demning a right of entry and right of way; or when the land-
owner is not contesting the appropriation.

§ 86. With Ckmsent of the Landowner or bjr the Landowner
Himself or Against Sferaagers to the Landowner. — ^Under the Cali-
fornia doctrine, the quotations previously given militate against
the validity of the appropriation even when lawful access to the

88 Duekworth v. WatsonyiUe etc.
Co., 150 Gal. 520, 89 Pac. 339.

50 Though not decided in the case.

o Conea v. Frietas, 42 Gal. 339;
Last Chance etc. Go. v. Heilbron, 86
CaL 1, 26 Pac. 523; Walker v. Emer-
son,' 89 Gal. 456, 26 Pac. 968 ; Ball
T. Eehl, 95 Gal. 606, 30 Piftc. 780;
Taylor v. Abbott, :103 Gal. 421, 37
Pae. 408; McGuire v. Brown, 106
CaL 660, 670, 39 Pac. 1060, 30 L.
R. A. 384; Sloane t. Glancy, 19 Mont.
70, 47 Pac. 334; and cases cited ante,
we. 79 et seq.

« Ibid,; and Lux v. Haggin, 69
Cal 255, 336, 344, 368, 10 Pac. 674 ;
Smith V. Denniff, 24 Mont. 20, ^1
Am. St. Bep. 408, 60 Pac. 398, 50
h..K A. 741; and the note in 43
Am. Dec 280.

Substitnting in the foUowing the
word ''appropriatable" for "naTiga-
ble," a succinct statement of the
rule is deduced. ''But as these so-
caUed navigable ('appropria table')
waters are wholly surrounded bv the
lands of plaintiif, and as it is
not asserted and indeed it would
require much rashness and temerity
to assert, that the public has a
right to invade and cross private
lands to reach navigable ('appro-
priatable') waters, a lawftd mode
of ingress and approach to these
navigable waters became necessary."
Mr. Justice Henshaw, in Bolsa etc.
Co. v. Burdick, 151 Cal. 254, 90 Pac.
532.

152 THE LAW OF APPBOPBIATION. §

water has befcn obtained throu^ the consent of the owner of the
private land where it is proposed to make the diversion. Before cit-
ing further authorities, an inquiry may be made into the prin-
ciples involved.

An appropriation of water is, under the California Ibeory, a
grant from thp government of rights wherever it has retained
them, whidi it will grant to all who lawfully apply.^ This is
the theory on which the entire California doctrine rests. If we
can find rights to the water remaining in the government, and
can find that an application for them can be made in a lawful
way, the appropriation in this case should be as good as in any
other.

If the stream in no place flows over government land, the gov-
ernment has retained no rights and has clearly none to grant to
the appropriator. But if the stream flows entirely over public
land with the exception of the land where the appropriation is
attempted, and there are no prior iappropriators, the government
has obviously retained very much that it may grant; namely,
any right to the water whatsoever which does not interfere with
the landowner who, in such case, is the sole existing private
claimant on the stream and has consented. If an intermediate
case, a simple process of sorting out the existing rights of others
on the stream would show whether an appropriation at the point
in question could be made without damage to the use of the prior
and vested rights. This is no different from the first question
that must be gone into also where the appropriation is on the
public land itself.

The government has, then, where part of the course of the
stream is on public land, the subject matter proper to be granted,
though the land where the diversion is made is private.

Is there anything unlawful in the way it is applied for! We
assume that the appropriator and not the landowner proposes to
use the water in a beneficial way, without waste, on other lands;
so that the pretended difficulty of a merger with the riparian
rights of the landowner is obviated.^ The consent of the land-
owner removes any unlawfulness as to him; the appropriation
would not be initiated by a trespass. We have started with the
assumption that no other claimants are interfered with. But
interference with prior private rights is the test, as we have seen.

62 Ante, sees. 11, 33. ^ See sttpra, see. 72.

H 87, 88 WHEBE AN AFPBQFBIATION CAN BE MADE. 153

There seems no. reason, then, why, the application is not made
in a in*o|>er way, and why the ease is not just as proper a one for
the govenuneixt to make the grant of the right to the appropria-
tor, who has the landowner's consent; as though the land where
the appropriation is attempted were publie. It is to the detriment
of public land <HB^y, if prior claimants are not damaged. It seems
the natural eoQseq«ienee of the simple rule of priority in the use
of the water and the rale that susch priority is index)endent in
principle of title to land and is not concerned therewith, and
eongequently sanctioned by the local rules and decisions within
the Revised Statutes.^ To deny the right would be inconsistent
with these rules. In reply to the question above raised, ''How-
can the government naake a gnmt on land it does not ownf it
can be answered l&at the goveriiment does not make a grant of
anything belonging .to the land it does not own, but of the right
to the water whicii it does own as parcel of the public land in the
neighborhood.

If the landowner himself seeks to make an appropriation on
his own land, we would have the same result, merely recalling
again that there is not necessarily any merger of an appropria-
tion and riparian rights.^ He could make an appropriation on
his own land if the stream flows over public land in such a way
that the appropriation does not interfere with prior claimants.

If the landowner does not object, it is the same, so far as stran-
gers to him are concerned, as though he had consented. The fact
that the landowner might object to a trespass on his land cannot
be used by someone else to defeat the appropriation without mak-
ing the landowner a party in the suit. The right ** cannot be
vicariously contested by another" in behalf of the owner of a
better right who does not appear in court.^

§ 87.. By Oondenmataon. — ^Upon condemning a right of entry
and right of way over the private land the result would be the

\ 88. Keview of Decisioas. — To turn now to the cases, we have
those where the right to make an appropriation on private land

^ Aaie^ sec 68. ^ As already discussed ante, sec.

« Sec. 72, 9wpra, 88.

^ The same as disenssed ante, see.

154

THE LAW OF APPBOPBIATION.

§ 88

not hcMitile or adverse to the owner of the land ia inferentially
placed on the same footing with the right to make one on public
land.^ It has been held that one, on his own land, may appro-
priate the whole stream where the rest of the land is public. The
appropriation was made on the land of the parties, and not on
public land. The court said: ''For, so far as appears, they were
at that time the sole occupants of the lands bordering the stream;
and the lands through which it flowed after leaving the lands of
Eewen belonged to the United States. Such being the case, they
had a right to appropriate the entire stream for any beneficial
purpose."** In Senior v. Aiiderson,^® the appropriation had been
made on the homestead of a stranger to the suit. The court, while
finding it unnecessary to decide thjs point, said, by way of dictum,
that this was a good appropriation against all but the landowner,
whose right to object, being that of a stranger to the suit, could
not affect the question. The following quotation is entirely in
point: ''The remaining finding to be considered is that the point
of diversion of the water by Senior was on the homestead land of
Mrs. Hines; from which it is claimed by the respondent that the
plaintiffs' appropriation was void, and we are cited to several
cases as supporting this contention."^^ But these cases cited differ
materially from the case at bar, being all of them cases between
the appropriator and the owner of the land on which the entry
was made, and being also cases of intentional trespass by the former
upon the latter. ' ' ^* In Healy v. Woodruff,''* the language used is

68 It was in effect so held in the
foUo?mig California eases: Edgar ▼.
Steyenson, 70 Cal. 286, 11 Pae. 704;
Healj V. Woodruff, 97 Cal. 464, 32
Pac. 528; Watterson t. Saldonbehere,
101 CaL 107, 35 Pac. 432; Vernon
Irr. Co. y. Los Angeles, 106 Cal.
237, 39 Pac. 762; Bathgate t. Ir-
vine, 126 CaL 135, 77 Am. St. Bep.
158, 58 Pae. 442; Senior v. Ander-
son, 130 CaL 290, 62 Pac. 563; Senior
V. Anderson, 138 Cal. 716, 72 Pac.
349; Duckworth v. Watsonville etc.
Co., 150 CaL 520, 89 Pae. 338; Al-
hambra etc. Co. v. Mayberry, 88 Cal.
74, 25 Pac. 1101. To the same ef-
fect, Famham on Waters, sees. 2043,
2051.

CO Alhambra etc. Co. v. Mayberry,
88 CaL 74, 25 Pac. 1101.

70 138 Cal. 716, 72 Pac. 349.

71 Citing Sturr v. Beck, 133 U. S.

541, 33 L. ed. 761. 10 Sap. Ct. Bep.
350; Taylor v. Abbott, 103 QaL 421,
37 Pac. 408; McGhiire ▼. Brown, 106
CaL 660, 39 Pac. 1060, 30 L. B. A.
384.

72 In San Jose Land & Water Co.
V. San Jose Baneh Co., 129 CaL 673,
62 Pac. 269, an appropriation made
on private land'(iauway grant) was
held valid after the land had been
forfeited and had become again pub-
lic; the decision holding it good nom
the start by relation. baek. In Bath-
gate V. Irvine, 126 CaL 135, 77 Am.
St. Bep. 158, 58 Pac. 442, it was
assumed that the only reason why
the plaintiff's attempted appropria-
tion on his own land was not good
was because there were upper prior
claimants who were parties to the suit.

78 97 Cal. 464, 32 Pae. 528. Su-
pra, sec. 84.

§ 88

WHERE AN APPBOPBIATION CAN BE MADE.

155

entirely in support of this view. To these cases must be added the
early ones where the private owner's rights were chiefly discussed
on the ground of actual appropriation, assuming the point J^

Against this view on principle, and these cases, there are the cases
speaking of the right generally as one on public land which were
speaking of the general fact when the land was so largely public
land, this question not having arisen and not being in mind; and
also the cases deciding with Lux v. Haggin, making similar state-
ments (that appropriations of water could be made only on public
land), when they were upholding the riparian rights of prior oc-
cupants on the stream, again not having in mind a case where
prior occupants were not interfered withJ^ These passages are in
contemplation of appropriations infringing riparian rights, not
having in mind cases where riparian rights were not asserted by
riparian owners or not interfered with if asserted, as is seen in
the following passage from Lux v. Haggin,^* in the first opinion^
not officially reported: ''But an appropriation of the water of a
stream flowing upon public lands, and upon lands held in private
ownership, does not affect or destroy riparian rights existing in
the stream at the time of the appropriation. Both rights — ^rights
of appropriation and riparian rights — may be acquired by original
and derivative acquisition ; they may exist together and be held in

conmion as property and each is entitled to the protection of the

law.''Tr

But chiefly the cases of City of Santa Cruz v. Enright,^^ and
Cave V. Tyler,''® both pretending to be direct decisions on the point.
In the former it was held that the appropriation attempted in that

'* Suprtif see. 18. In the cases
cited is fVkmham on Waters, sees.
2043 and 2051, this view also finds
support.

^ As to the riparian right in the
abeence of such interference, see in-
ira. Part 11, c. VII.

7« (Oal.), 4 Pac. 919.

^ MeKee, Judge, in Lux v. Hag-
gin (Cal.), 4 F^c. 919, at 928. Mr.
Jitttiee Shaw, in Duckworth t. Wat-
wnvine etc Co., 150 Gal. 520, 89
Pie. 338. points out the same dis-
tioetion, in the passage where he says :
"The light to appropriate water nn-
[ler the provisions of the Civil Code
is not confined to streams running
over public lands of the United

States. It exists wherever the ap-
propriator can find water of a stream
which has not been appropriated and
in which no other person has or claims
superior rights and interests. And
the right cannot be disputed except
bpr one who has or claims a supe-
rior right or interest, and by him
only so far as there is a conflict. It
cannot be vicariously contested by an-
other on behalf of the owner of the
better right" — ^meaning that no one
but the injured riparian owner can
set up the existence of riparian rights
on the stream. See infra, sees. 195,
823

78 95 Cal. 105, 30 Pac. 197.

79 133 OaL 566, 65 Pac. 1089.

156

THE LAW OF APPBOPEIATION.

§88

case was not good, because there was no proof that the land was
public land. No reason was given why such proof was neocssaiy.
But a close reading of the report shows that the meaning was that
as against existing claimants on the stream, all being parties to the
suit, it must appear that the whole stream was n&t on private land.
It was not discussing the point of divereion, but the question of
whether there was any public land on the stream at all; for if
there is not, the whole stream belongs to the private riparian
owners; their existing rights exhaust it all if th^re is no puUic
land along it. It simply holds that the appropriator must akom
the existence of some public land on the stream at tiie time of his
appropriation, and does not actually decide .that the point of di-
version must itself be on public land.^ In the latter (Cave v.
Tyler) the court did go into the matter, as shown in the passage
quoted above, and the language used is entirely opposed to any
right to appropriate water on private land under any circumstanees.
But the argument, as. seen in the passage quoted, bases the right
of appropriation on an analogy to adverse use or prescription
and is hence opposed to accepted fundamental principles. We have
already shown the established doctrine that under the California
doctrine an appropriation is, by virtue of Revised Statutes of the
United States,®^ equivalent to an express grant;®- and it will be
seen from the rules composing the system as a whole (to be set
forth hereafter) that an appropriation in no way depends for its
creation or terms upon the requisites necessary to raise the implied
grant of the common-law prescription.

That an appropriation is not based on an analogy to prescrip-
tion was declared expressly in Smith v. Hawkins, saying:^ **An
appropriator of water under these circumstances, and while the
land which he subjects to his necessary uses continues to be part
of the public domain, is a licensee of the general government; but
when such part of the public domain passes into private ownership
it is burdened by the easement granted by the United States to the
appropriator, who holds his rights against this land under an ex-
press grant. In this essential respect, that is to say, in the origin
of the title under which the servient tenement is subjected to the

80 If this is the true meaning of
the case, it is still in opposition to
what was said in the Duckworth case
just quoted.

81 Sections 23S9 and 2340.

82 Ante, sec. 33.

I 83 110 Cal. 122, 42 Pac. 453.

$ 88 WHEBE AN APPBOPEIATION CAN BE MADE. 157

use, one holding water rights by such appropriation differs from one
wholrolds water rights hy prescription. The differences are two-
fdd A prescriptive right could not be acquired against the
United States, and can be acquired only by one claimant against
another private individual. Again, such an appropriaticm, to
perfect the rights of the appropriator, does not necessitate use
, for any given length of time, while time and adverse use are essen-
tial elements to the perfection of a prescriptive right."

The argument in Cave v. Tyler rests on the false assumption
that would substitute the tests of common-law prescription in the
place of the simple rule of priority.

Even if the principles on which Cave v. Tyler rests were correct,
they would not support the conclusion that no appropriation could
in any case be made on private land. The reasoning would ap-
ply to public and private land alike, and leave no distinction be-
tween the two, since the question of invasion of actual use of i/iater
is one of physical fact, independent of the abstract notion of title
to land. There would be the same result whether the appropria-
tion were made on land that is private or public. The reasoning
would prove that no appropriation could be made against use above,
where the natural flow is not invaded, whether on land that is pub-
lic or private ; it would likewise provp that it could well be made
as against use below where the use in fact is invaded, whether
the land be public or not; and would support an appropriation
on private lands against later comeift below. The distinction be-
tween public and private lands contended for by the case by no
means follows from the reasoning ; and the conclusions that do fol-
low from the reasoning, applying the principles of adverse use, and
distinguishing appropriators above and below,*®* are contrary to
the established simple rule of priority.

That the argument in Cave v. Tyler is based on a wrong view
of the doctrine of appropriation is shown by the query, ** Under
what local custom or law, under what 'decisions of the courts,' was
there 'a vested and accrued right of respondents to all the water of
the stream up through the public domain to its head, thus de-
priving a large seoticm of country above of its source of fertility 1"
It may be noted that this is an exaggeration, since the use above

•

could well be made, by later comers, of the surplus, or of the whole

«• See Hill v. King, 8 Cal. 336.

158

THE LAW OF APPBOPBIATION.

§ 88

if returned to the stream without damage to the prior appropria-
tion, as in the many and frequent cases of successive appropria-
tion, a question long since answered satisfactorily. But aside from
this, the law of appropriation is based on the right to do that very
thing in a case of priority,®^ and, as is said in Irwin v. Phillips,
the original precedent,*^ the later comer who chooses to locate on
such a stream must abide the disadvantages of his own selection.
This v^ry result of the law of appropriation has been often pointed
out. In one recent case it is said that an appropriation may be
made though it has the result 'Ho lay barren and waste the lands
of defendants in Montana, that two farms in Wyoming may be
supplied with water," because the contention to the contrary ''dis-
regards the maxim that he who is first in time is strongest in right
which is the very essence of the doctrine of appropriation. " * "A
few men will locate their farms near the mouth of a stream and ap-
propriate the waters thereof, and any subsequent locators up the
stream would be guilty of a trespass if they undertook to use any of
the waters thereof, imd an action could be prosecuted and main-
tained against them Thus, the prior appropriator renders

vast tracts of land utterly worthless, and their sale is lost to the
government and their cultivation to the people. "'^

The broad principle asserted in Cave v. Tyler is opposed to the
result reached in other jurisdictions, as the following passages show :
In Washington:^ "The fact appearing that respondent first di-
verted water from the stream where it ran through his own prem-
ises does not militate against his appropriation." In Montana:^
"Now, being the owner of riparian land, he can, as has been shown,
legally exercise this privilege on his own land ; and, when he has
perfected such ipchoate right by fulfilling the requirements of the

84 See cases cited, sees. 45, 46,
ante, and especiaUy, Pomeroy on Bi-
parian Bights, sec. 92. A reference
to the Supreme Court Beeords, toI-
ume 2178, pa^ 1, shows that this
point, upon which the court so strong-
ij rcdied, was raised only in the reply
brief, and only in a very short para-
graph (page 137), showing that coun-
sel regarded it as unimportant.

SB 5 Gal. 140, 63 Am. Dee. 113.

86 Morris t. Bean, 146 F^ 435.

87 Wade, C. J., in Thorp t. Freed,
1 Mont. 678, argninff that the law of
appropriation should be rejected en-
tirely as to irrigation.

88 Offield y. Ish, 21 Wash. 277, 57
Pac. 809.

80 Smith T. DennifF, 24 Mont 20,
81 Am. St. Bep. 408, 60 Pac 398,
50 L. B. A. 741.

§ 89 WHEBB AN APPROPBIATION CAN BE MADE. 169

statute, the legal title to such water rights becomes vested in him^
.... by reason of statutory grant. ' ' In Oregon : ^ * * The right
of prior appropriation is limited to the use of water by the pioneer
settler before any adverse claims or riparian proprietors attach
to the stream from which' the water is taken, and not to the point
of diversion, which may be either within or beyond the boundaries
of the tracts selected by such settler." Adding that to make him
go above his boundary to divert might be so expensive as to be pro-
hibitive and so retard settlement. In a more recent case the same
court says: ''An appropriation of water is a grant by the general
government to the settler of the right to its use from a non-
navigable stream, to the injury of all public land above [and, it
may be added, below] the point of diversion, which may be within
or beyond the boundaries of the settler's claim. "^^ In all these
jurisdictions the combined system of appropriation and riparian
rights is in force as in California.

While, consequently, Cave v. Tyler is a direct and actual deci-
sion that an appropriation cannot, in California, be made when the
point of diversion is on private land, yet it is so contrary to the de-
eisions in other States, to the weight of authority in California, and
80 inconsistent with the remark in a recent case in the same court
that, though not since mentioned or expressly overruled, it prob-
ably does not represent the law even in California.

§ 89. Recapitulation. — ^The following principles would seem
to follow in all jurisdictions :

a. An appropriation can be made on public lands, wherever it
is possible to do so without interfering with prior appropriations,
or, under the California doctrine, with the riparian rights of prior
occupants, and only the owners of those rights, or some one in
privity with them, can set up the interference.

h. An appropriation cannot be made on private land hostile to
the owner thereof. Consequently, it is a general rule that an ap-
propriation cannot be made on private land ; the former Colorado
view to the contrary having been withdrawn.

c. An appropriation can be made on private land with the con-
sent of the owner thereof or by the owner himself, or against

^ Brown ▼. Baker, 39 Or. 66, 65 91 Morgan v. Shaw, 47 Or. 333, 83
Pu. 799, 66 Pac 193. Pac. 534.

160

THE LAW OP APPBOPKIATION.

§89t

8trftngera to the landowner or by condemning a right of entry
and right of way, snbjeet to the same conditiona as on pablie land;
viz., wherever it is possible to do so without interfering with prior
appropriations or, under the California doctrine, with the riparian
rights of prior occupants, and only the owners of those rights
or some one in privity with them can set up the interference; the
California cases to the contrary being either dictum or actuaDy
withdrawn.

d. The rights of any person infringed cannot be considered
in opposition to the appropriation whai set up by a stranger to
the party infringed. If not set up by the injured party or some
one in privity with him, the infringed right does not militate
against the validity of the appropriation.

§ 89a. Oovemm«it Ditches on Private Land. — ^The act of Con-
gress, August 30, 1890,^ has the effect of reserving a perpetual
easement and right of way to the government for ditches and canals
that might thereafter be constructed by authority of the government
over lands which l^ave been entered and patented subsequent to the
passage of the act or that shall be patented hereafter. In other
words, all private lands, hereafter patented, or patented since 1890,
have been held to be subject to government ditch building.^

508, U. S. Comp. Stats. 1901, p. 1570. 8am« v. Same (Idaho), 93 Pae. 971.

§§ 90, 91 WHAT CAN BE APPROPBIATED. 161

CHAPTER VI.

WHAT CAN BE APPROPRIATED.

I 90. Water in a surface watercourse.

I 91. What constitutes a watercourse.

§ 92. Same — Springs.

§ 93. Same — Sloughs.

S 94. Same — ^Flood or storm waters.

^ 95. Same — Definition.

§ 96. Surface tributaries.

§ 97. Navigable streams.

S 98. Interstate streams.

S 98a. Same.

§ 99. Same — ^Kansas v. Colorado.

§ 100. Artificial watercourses.

§ 101. Diffused surface water.

3 102. Lakes and ponds.

§ 103. Swamp lands.

{ 104. Underground water.

•

§ 90. Water in Surface Watercourse. — Water in a surface
watercourse is the type case of appropriation. The cases almost
invariably speak only of "running streams, "'** flowing water,"
''water in a watercourse." This is also the language of the Cali-
fornia Civil Code^ providing what can be appropriated. **The
right to the use of running water flowing in a river or stream
or down a canyon or ravine, may be acquired by appropriation. ' '

§ 91. What Constitutes a Watercourse. — Close questions arise
as to what is and what is not a watercourse. In Lux v. Haggin,^
the court discusses at length the requisite^ for a watercourse, and
concludes that a channel is necessary to the constitution of a water-
course,* also a tendency of water to flow in it more or less regu-
larly.* The second requisite is not fulfilled by a chance flow in a

1 See 1410 ^ Accord Razzo v. Yami, 81 Cal.

J 69 CaL 255, .t 413-419, 10 Pac. ^t' ^^B^r^^ v. Sabron, 10 Nev.

"*• 217.

Water Rights— 11

162 THE LAW OF APPROPRIATION. § 91

channel usually dry all year round,^ though, on the other hand,
the channel need not be full all year round.® It is a question of
fact whether there is a tendency to regular flow, and no presump-
tion of continuance can be indulged from proof of a single flow."^
A valley dry on the surface every summer from June to November,
- the soil being sandy, and the river bed varying greatly and change
Ing often, may, nevertheless, constitute a watercourse.® A bog of
one-half acre fed by percolations, but no channel entering or leav-
ing, is not a watercourse, and cannot be appropriated as such.^
''It is not essential to a watercourse that the banks shall be
unchangeable, or that there shall be everywhere a visible change
in the angle of ascent marking the line between bed and banks.
The law cannot fix the limits of variation of these and other par-
ticulars. As was said, in effect, by Curtis, J., in Howard v. Inger-
soll,^® the bed and banks or the channel is in all cases a natural ob-
ject, to be sought after, not merely by the application of any ab-
stract rules, but, 'like other natural objects, to be sought for and
found by the distinctive appearances it presents.' Whether, how-
ever, worn deep by the action of water, or following a natural
depression without any marked erosion of soil or rock ; whether dis-
tinguished by a difference of vegetation, or otherwise rendered
perceptible — a channel is necessary to the constitution of a water-
course.'' And elsewhere in the same case: "A watercourse has
been said to consist of *bed, banks and water.' The water need
not flow continually, but it would seem the flow must be periodi-
cal— such as may be expected during a portion of each year.''
And again: **If the water did not flow with regular periodicity,
or if, flowing periodically, it had no defined channel (other than
the whole swamp), the plaintiffs had no cause of action." *^

Beside these two requisites given in Lux v. Haggin, of a channel
and a flow, a thihi requisite is usually recognized; viz., a per-
manent source of supply. To constitute a watercourse it is neces-

5 Lux V. Haggin, supra. ® Huflfner v. Sawday (Cal., Feb.

eSpangler v Sai, Francisco, 84 lli^^i' ^^ ^i^* A^*'/^*^^"^i'
Cal. 12, 18 Am. St. Bep. 158, 23 ^^>®» ^"- ^' ^ Angelee, 103 Cal.

^: i^L^':%:ie^^^^^ p;>iS^7 -^<i<^- (Wai^O, 93

28 Am. St. Rep. 727, 27 Pac. 7. ^^^^ ^3%^ ,^ ^ ^^ 2^

7 Lux V. Haggm, supra; Mornson n i,^ ^ Haggin, 69 Cal. 255.

V. Officer (Or.), 87 Pac. 896. 10 Pfcc. 674.

§ 92

WHAT CAN BE APPROPRIATED.

163

sary that there be a permanent source of supply.^^ The source may
be springs/* or it may be surface water/* or a pond formed by sur-
face water.^'

There are, hence, three essentials requisite to constitute a water-
course, viz. : A channel, a flow, and a source of supply.

§ 92. Same — Springs. — ^Water from a spring is water in a
watercourse, however small, if it runs off in a definite channel,
with a tendency to regularity,^® and niay be appropriated as water
in a watercourse,^'^ even though the appropriator builds a ditch
to the very mouth of the spring.^^ The water in the spring itself,
however, that is, before it has gathered on the surface, is not water
in a surface watercourse, but is treated on the principles of under-
ground water.^® Water flowing from a well on public land may
be appropriated as water in a surface watercourse, though the
appropriator takes the stream at its starting point — i. e., ditches to
the mouth of the well.^ This case is very like Ely v. Ferguson
(supra) ^ cited therein, and the court expressly declares that the
decision does not refer to the percolations supplying the well
underground ; but only to the water on the surface. In Strait
V. Bpown,^^ it was decided that a creek having its source in springs,
which ran a short distance through a natural surface channel,
and then discharged into a large slough, which had no natural
surface outlet, was a watercourse, and that the waters running
in the surface channel could not be diverted to the injury of the
lower owners. When a spring furnishes a stream of water that
rises to the surface, the right of appropriation attaches,^ but

12 Barkley v. Wilcox, 86 N. Y. 140,
40 Am. Rep. 519; Jeffera v. Jeffers,
107 N. Y. 650, 14 N. E. 316 j Greg-
ory V. Bush, 64 Mich. 37, 8 Am. St.
Bep. 797, 31 N. W. 90.

« Pyle V. Richards, 17 Neb. 180,
22 N. W. 370; Mitchell v. Bain, 142
Ind. 604, 42 N. E. 230; Wolf v.
Crothere (Pa.), 21 Pa. Co. a. R.
627.

" Arthur v. Grand Trunk R. R.
Co., 22 Ont. App. 89; 95; Beer v.
StToud; 19 Ont. 10; McKinley v. Un-
ion County Freeholders, 29 N. J. Eq.
164; KeUy v. Dunning, 39 N. J. Eq.
*82; EuMch V. Richter, 41 Wis. 320;
Barnes v. Sabron, 10 Nev. 217; 2
Parnham on Waters, sec. 457; Gould
OB Waters, 3d ed., sec 263.

15 Neal V. Ohio River R. Co., 47
W. Va. 316, 34 8. E. 914.

le Brosnan v. Harris, 39 Or. 148,
87 Am. St. Rep. 649, 65 Pac. 867,
54 L. R. A. 628; Pomeroy on Ri-
parian Rights, sec. 62.

17 Wilkins v. McCue, 46 Cal. 656;
Shennandoah etc. Co. v. Morgan, 106
Cal. 409, 39 Pac. 802.

18 Ely V. Ferguson, 91 Cal. 187,
27 Pac. 587.

10 Cohen v. La Canada Water Co.,
142 Cal. 437, 76 Pac. 47.

20 Wolfskill V. Smith, 5 Cal. App.
175, 89 Pac. 1001.

21 16 Nev. 317, 40 Am. 'Rep. 497.

22 Brosnan v. Harris, 39 Or. 148,
87 Am. St. ftep. 649, 65 Pac. 867,
54 L. R. A. 628.

164

THE LAW 01* APPBOPRIATION.

§§ 93, 94

where the admitted quantity is so insignificant that a surface
stream is impossible, when spread over the width of ground in-
volved, the use of the water belongs to the person upon whose land
it first arises.®

§ 93. Same— SlonghB. — A slough without original water of its
own is not a watercoufse.^* Where water flowed in a slough having
well-defined banks leading from a river to a creek, such sloughs
constituted a watercourse, though at some points the channel
spread out and the water was quite shallow.^

§ 94. Same — Flood or Storm Waters. — The decisions are in
conflict upon the subject of whelher overflow or flood waters of a
river are to be treated as surface waters or as part of the water-
course, says the Montana court,^ adding that in Indiana, Missouri,
Kansas, Nebraska and Wast^ington the former is held,^ * and in
Georgia, Ohio, Iowa, Virginia, Minnesota, South Carolina, Wis-
consin and Tennessee the latter is held,^ while in California prob-
ably the former.^ The Montana court holds that it is a question
of fact in each case, depending chiefly upon whether continuity
is or is not permanently broken. The California rule has, however,
been recently held to be the latter — the flood water is part of the
stream — though the decisions hitherto conflicted.*® The California
court recently said: **And when such usually recurring floods or
freshets are accustomed to swell the banks of .a river beyond the
low-water mark of dry seasons and overflow them, but such waters
flow in a continuous body with the rest of the water in the
stream and along well-defined boundaries, they constitute a single

natural watercourse Where the stream usually flows in a

continuous current, the fact that the water of the stt*eam, on ac-
count of the level character of the land, spreads over a large area

23 Morrison v. Offieer (Or.), 87
Pac. 896.

24 Lamb v. Beclamation Diat., 73
Cal, 125, 2 Am. St. Eep. 775, 14
Pac. 625; Hagge v. Kansas etc. Co.,
104 Fed. 391.

25 Cederburg v. Dutra, 3 Cal. App.
572, 86 Pac. 838. See Lux v. Hag-
gin, 69 Gal. 255, 10 Pac. 674; Green
V. Carotto, ^2 Cal. 267, 13 Pac. 685.

26 Fordham v. Northern Pac. Rv.
Co., 30 Mont. ^21, 104 Am. St. Bep.
729, 76 Pac. 104^, 66 L. R. A. 556.

27 Citing cases.

28 Qitinfir cases.

29 See tne leading English case of
Broadbent v. Bamsbotham, 11 Ex.
602.

30 In^ra, Biparian Bights, sec. 319,
where the matter is chiefly involved.

§95

WHAT CAN PE APPROPRIATED.

165

withont apparent banks c^^es not affect its character as a water-
course."*^

The overflow waters of a stream, especially where they run in a
well-defined course, and again unite with the stream at a lower
point, must be regarded as a part of the watercourse from which
the overflow comes, and cannot be regarded or dealt with as surface
water.® So it has been held that, when surface watery collect into
a pond, which is of a permanent character, they cease to be surface
waters.^ Pvep surface water becomes a natural watercourse at the
point where it begins to form a reasonably w^U-defined channel,
with bed, and banks, or sides, and currept, although the stream
itself may be very small and the water may not flow continuously.^
The (pinion is not to be determined alone from the origin of the
water, for streams may be composed, wholly of surface water or
that which falls in the shape of rain or snow.*^ Depressions iji
the prairies due to the rolling character of the ground, where the
surface water ditains, are not watercourses.^

■

The right to impound storm waters after they have reached the
channel is **sub judice.''^

§ 96. Same— Definition. — The following definition is quoted
from Sanguinetti v. Pock : ^

**A watercourse is defined to be * a running stream of water;
a natural stream, including rivers, creeks, runs, and rivulets. ' ^
Further defining the term, this court said : ' There must be a stream,
Qsaally fiowing in a particular direction, though it need not flow
continually. It may sometimes be dry. It must flow in a definite
channel, having a bed or banks, and usually discharges itself into
some other stream or bo.dy of water. It must be something more
than a mere surface drainage over the entire face of the tract of

^ Miller & Lnz v. Madera etc.
Co. (Cal Sup.), Oct. 2, 1907, a re-
lieanng has heen granted.

32 Brinegar v. Copass (Neb.), 109
N. W. 173.

33 Bchaefer v. Martbaler, 34 Minn.
4«7, 57 Am. Bep. 73, 26 N. W. 726 ;
Alcorn v. Sadler, ^ Miss. 221, 5
SontK 694; Bait v. Furrow, 74 Kan.
101, 85 Pfcc. 934, 6 Ij. R. A., N. S.,
157.

3* Chnrchill v. Lauer, 84 CaL 233,
24 Pac. 107. ^

» Bait V. Furrow, 74 Kan. 101,

85 Pac. 934, 6 L. R. A.,- N. S., 157 ;
Palmer v. Waddell, 22 Kan. 248.

36 Gibba v. Williams, 25 Kan. 214,
37 Am. Rep. 249; Rait y. Furrow,
74 Kan. 101, 85 Pac. 934, 6 L. R. A.,
N. S., 157.

37 See infra, sec. 234, ** Recap-
ture," and sec. 319, regarding ''Ri-
parian Proprietors." See, also, ante,
sec. 62.

38 136 Cal. 466, at 471, 89 Am.
St R^. 169, 69 Pac. 98.

39 Citing Black 'Is Law Dictionary,
title "Watercourses."

166

THE LAW OP APPBOPBIATION.

S 96

land, occasioned by unusual freshets or other extraordinary causes.
It does not include the water flowing in the hollows or ravines
in land, which is mere surface water from rain or melting snow
(i. e., snow lying and melting on the land), and is discharged
through them from a higher to a lower level, but which at other
times are destitute of water. Such hollows or ravines are not,
in legal contemplation, watercourses.*^ The evidence does not
bring the depression or swale in question within this definition.
This so-called watercourse is nothing more than a local drainway
to a limited .amount of laiid which has neither a definite beginning
nor ending, and is like hundreds of similar swales found in land
whose surface may be called generally level." **

A statutory definition is provided in North Dakota,*^ as follows :
**A watercourse entitled to the protection of the law is constituted,
if there is a sufBcient natural and accustomed flow of water to form
and maintain a distinct and defined channel. It is not essential
that the supply of water shpuld be continuous or from a perennial
living source. It is enough if the flow arises periodically from
natural causes, and reaches a plainly defined channel of a per-
manent character. ' * ^

Beside the essential requisites of a channel, fiow and source,
two other characteristics are usually found: (a) tributaries, sur-
face or subterranean; (&) a sub-fiow, seeping with the stream be-
neath the soaked soil. These subterranean parts of the stream are
considered elsewhere.**

§ 96. Surface Tributaries. — ^As a matter of point of view, it
is proper to look upon the stream as not merely consisting of the
channel and fiow at the point where the observer is standing, but
as a composite body in which the upper branches and tributaries
are an integral part. The right to these tributaries is then identi-
cal with the right to the stream, on the principle that the whole

^ Citing Los Angeles ete. Assn.
V. Los Angeles, 103 C&\. 466, 37 Pac.
375, citing text-books and cases.

41 See Pomeroy on Riparian
Bights, sees. 6, 62.

42 N. Dak. Stats. 1907, p. 444.

ti What constitutes a watercourse
discussed: Pyle v. Richards, 17 Neb.
180, 22 N. W. 370 J Morrissey v. Chi-
cago etc. Co., 38 Neb. 406, 56 N. W.
946; West v. Taylor, 16 Or. 165, 13

Pac. 665; Geddis v. Parrish, 1 Wash.
587, 21 Pac. 314; Bigney v. Ta-
coma etc. Co., 9 Wash. 576, 38 P^c.
147; Town v. Missouri Pac. By., 50
Neb. 768, 70 N. W. 402; Mace v.
Mace, 40 Or. 586, 67 Pac. 660, 68
Pac. 737; Case v. Hoffman, 84 Wis.
438, 36 Am. St. Rep. 937, 54 N. W.
793, 20 L. R. A. 40.
44 Part III, below, sees. 353, 356.

WHAT CAN BE APPBOPBIATED.

167

includes the sum of its parts. The appropriator of a stream has a
right to its tributaries and to all its sources, and it merely becomes
a question of proof whether the hostile diversion is of water that is
or is not tributary on the evidence. (Through the advance of
8cientifie knowledge this proof enables the appropriator to follow
and trace the stream even into tributary percolations underground,
a matter to be' separately considered.)^ The cases enforce, in
favor of a stream claimant, rights to tributaries to his stream on
this view of it.**®

Likewise as to a lake that is tributary to or the source of a
stream.^^ Likewise as to springs flowing into tributaries that flow
into the appropriated stream.^ And finally, likewise, on the best
authorities, as to the underground percolations tributary to the
springs.^ These are all parts of the stream, and rights in them,
on proof of the facts, are governed by the law of the stream. The
time of appropriation between the stream claimant and the
tributary claimant will govern their rights as appropriators.

§ 97. Navigable 8tr6aiiui.<^ — ^The water of navigable streams
may be appropriated as well as the water of those not navigable.
Thus, for example, a dam in the San Joaquin Biver at a point
where it is navigable, and an appropriation of water there, were
upheld against all but the State or some one injured in navigating.^^
Whether the point could be raised by the State or those injured
in navigating was not decided. The rights on navigable streams
are in general all that can be- exercised without being inconsistent

^ The source may be springs, sur-
fue wafer or ponds formed by sur-
face water or underground water, or
any permanent source of supply.
Rait T. Furrow, 74 Kan. 101, 85
Pac. 934, 6 L. B. A., N. 8., 157.

^ Priest V. Union etc. Co., 6 C5al.
170; Stickler v. Ck>lorado Springs, 16
Colo. 61, 25 Am.. St. Bep. 245, 26
Pm. 313; Malad etc. Co. v. Camp-
beU, 2 Idaho (378), 411, 18 Pac.
52; Tonkin v. WinzeU, 27 Nev. 88,
73 Pae. 593; Low ▼. Schaffer, 24 Or.
239, 33 P&c. 678 ; Low v. Bizor, 25
Or. 551, 37 Pac. 82; Boyce v. Cup-
per, 37 Or. 256, 61 Pac.' 642; Salina
rte. Co. V. Salina etc. Co., 7 Utah,
^, 27 Pac. 578, among others; cf,
Verdngo W. Co. v. Verdugo (Cal.
8ap., Jan. 23, 1908), 93 Pac. 1021.

"47 Duckworth v. Watsonyille etc.
Co., 150 Cal. 520, 89 Pelc. 338;
Buckers etc. Co. v. Platte etc. Co., 28
Colo. 187, 63 Pac. 305; Cole v. Bich-
ards etc. Co., 27 Utah, 265, 101 Am.
St. Bep. 96^, 75 Pac. 376; City of
New Whatcom v. Fairhaven, 24 Wash.
493, 64 Pac. 735, 54 L. B. A. 190;
Cole V. Bichards Irr. Co., 27 Utah,
205, 101, Am. St. Bep. 962, 75 Pac.
376.

*8 Beaverhead etc. Co. v. Dillon
etc. Co., 34 Mont. 1B5, 85 Pac. 880.

49 Infra, sec. 356.

60 See, also, sec. 290, infra,

M Miller v. Enteiiprise Co., 142 Cal.
208, 100 Am. St. Bep. 115, 75 Pac.
770.

168

THE LAW OF APPROPRIATION.

§ dS

with the, public easement o^ navigation.'*^ The court says in United
States V. Eio Grande Dam and Reservoir Company:^ **It does
not follow that the courts would be justified in sustaining a^y
proceeding by the attorney general to restrain any appropriation of
the upper waters of a navigable stream. The question always is one
of fact, whether such appropriation substantially interferes with
the navigable capacity within the limits where navigation is the
recognized fact. ' '

A lawful mode of ingress and approach is, however, necessary
before th^ public caif exercise the privileges appertaining to naviga-
ble waters. The public has no right to invade and cross private
lands to reach navigable waters that are wholly surrounded by
the private land. If such a right of approach becomes a public
necessity, the proper course is by condemnation under the eminent
domain procedure.*^ It may be remarked that the title to the bed
of navigable streams is in the State.^

§ 98. Interstate Streams.^ — Recently, several cases have been
decicled concerning the rights of appropruLtoi» on a stream which
crosses a Stat^ boundary. The cases are unanimous that no inno-
vations in the law of appropriation are nec^sary on that account.
''Water is essential to human life in the same degree as light and
air and no boimds can be set to its use for supplying the natural
wants of meta other than the mighty barriers which the Creator
has made on the face of the earth," says Judge Hallett.?^

52 Heilbron v. Fowler etc. Canal
Co., 75 Cal. 426, at 433, 7 Am. St.
Rep. 183, 17 ?ac. 535; United States
V. Rio Grande etc. Co., 174 U. S. 690,
43 L. ed. 1136, 19 Sup. Ct. Rep. 770.
Affirmed in Kansas v. Colorado, 206
U. S. 46,51 L. ed. 956.

53 174 U. S. 690, 709, 43 L. ed.
1136, 19 Sup. Ct. Rep. 770.

54 Bblsa etc. Co. v. Burdick, 151
Cal. 254, 90 Pac. 532.

55 Green v. Swift, 47 Cal. 536;
Wright V. Seymour, 69 Cal. 122, 10
Pac. 323; Packer v. Bird, 71 Cal.
134, 11 Pac. 873; Cardwell v. Sac-
ramento, 79 Cal. 347, 21 Pac. 763.
See Cal. Pol. Code, 2875, 3479; Cal.
Civ. Code, sec. 670. See Long on Ir-
rigation, sec. 34, accord. Mr. Justice
Gray, in Shively v. Bowlby (152 U.

S. 1, 26, 27, 38 L. ed. 331. 14 Sup.
Ct. Rep. 548), says: *'In Pollard v.
Hagan (1844) this court, upon full
consideration (overruling anjthiiig to
the contrary in Pollard v. Kibbe, 14
Pet. 353, 10 L. ed. 490, Mobile v.
Eslava, 16 Pet. 234, 10 L. ed. 948,
MobUe V. HaUett, 16 Pet. 261, 10 L.
ed. 958, Mobile v. Emanuel, 1 How.
95, 11 L. ed. 60, and Pollard v. f^les,
2 How. 591, 11 L. ed. 391), ad-
judged that upon the admission of
the State of Alabama into the Union
the title in the lands below high-
water mark of navigable waters
passed to the State.''

56 See, also, sec. 291, infra.

57 Hoge V. Eaton (C. C. Colo.),
135 Fed. 411.

§ 98 WHAT CAN BE APPROPRIATED. 169

In Kansas v. Colorado,!* in the supreme court of the United
States, Mr. Justice Brewer said the decisions of the supreme

■

court of the United States are ** practically building up what may
not improperly be called interstate common law. ' '

A case of much interest that has been in court for several years
is that of Miller & Lux v. Rickey.*^® That case involved rights
on the Walker River, which rises in the Sierras in California, and
flows east across the sands of Nevada, terminating in Walker Lake.
The use of the waters of the river for irrigation has caused the
lake to shrink alarmingly. The plaintiff sued in Nevada for in-
jury to his rights in Nevada, the defendant being among those
who diverted the 'water in California. Judge Hawley, in the
circuit court, upheld the right to bring suit. Interesting develop-
ments in this connection may be expected from the litigation re-
cently started over the use of the waters of Lake Tahoe, which is
situated partly in Nevada and partly in California. The waters
of this lake are to be dammed on the California side by the United
States Reclamation Service and conducted through the Truckee
River to irrigate Nevada lands. The Truckee River itself, more-
over, flows through both States. The objection conies from the
owners of summer homes and hotels on the lake, and manufacturing
and lumber companies on the river, and from the State of Cali-
fornia generally, which has long taken pride in the natural beau-
ties of Lake Tahoe. At one time there was a project to divert the
lake waters for water supply for San Francisco, but this was
given up because of the objection raised by Nevada. An injunc-
tion against the present work has been sought in California.

A careful examination of the question of conflict of laws as ap-
plied to water rights was made in the valuable cas^ of Willey v.
Decker.** The facts in Willey v. Decker were that the stream
flowed from Montana to Wyoming, and the appropriations involved
were all made while both States were Territories, when there was
no divided territorial sovereignty, and before the Wyoming stat-
ute*^ covering the subject of irrigation; whence the court found
it unnecessary to consider what would be the effect of appro-

M 206 U. S. 46, 51 L. ed. 956. 60 n Wyo. 496, 100 Am. St. Bep.

» 127 Fed. 573 (C. C. Nev.). The 939, 73 Pac. 210.
ease in another form is now before 01 Stats. 1886, p. 294, c. 61.

tlie supreme court of t^e United

States.

170

THE LAW OP APPBOPBIATION.

§ 98

priations made under the present laws. Some of the. plaintiff
were both diverting and using the water in Wyoming, others di-
verting in Wyoming for use in Montana. Some of the defendants
(Oberreich) diverted in Wyoming for use in Wyoming, others di-
verting in Wyoming for use in Montana, and still others diverting
in Montana for use in Wyoming. The court takes pains to note that
no riparian rights were asserted by the Montana claimants, and
that, though they might have made such claim, it was unnecessary
to consider such rights because not asserted. The court also notes
that it is unnecessary to decide what would be the law of interstate
use outside of a State on a stream entirely within it and not an
interstate stream. The Wyoming court decided in Willey v.
Decker that Wyoming and Montana appropriators may join in a
Wyoming diversion to irrigate lands lying in both States; also
a Mgntana diversion for use in Wyoming will be enjoined in Wyom-
ing where it injures other Wyoming users, and likewise a Montana
or Wyoming diversion for use in Wyoming will be enjoined in
Wyoming where it injures others who divert in Wyoming though
their use is on Montana lands. The court states the rule generally
as follows: ''The separation of the lands capable of . irrigation from
such streams by State lines is of no consequence, if we are to con-
sider merely the general principles of the doctrine and the reasons
that called it into existence. The same necessity applies tx) the
lands on either side of the line, and the water naturally flows in
the channel of the stream in disregard of such line above as well

as below it We find nothing, therefore, in the fundamental

principle of the doctrine of prior appropriation that he who is
first in time is first in right, nor in the reasons that led to the
establishment of the doctrine, which is opposed to the acquirement
of a water right for the irrigation of lands in one State by the diver-
sion of the water at a point in another State from a stream flow-
ing in both States. ' '

In Hoge V. Eaton,^ Sand Creek flowed from Colorado into
Wyoming. Plaintiff diverted and used the water in Wyoming.
Defendant diverted in Colorado and injunction was granted, and
the following was held to be the law: **The right to divert run-
ning waters for irrigating lands in an arid country is not con-
trolled or affected by political- divisions. It is the same in all

82 C. C. Colo., 135 Fed. 411.

§ 9S WHAT CAN BE APPROPBIATED. 171

States through which the stream so diverted may pass An

appropriation of water in the State of Wyoming from a stream
which rises in Colorado for irrigating lands in Wyoming is valid
as against a subsequent appropriation in Colorado, from the same
stream for irrigating lands in Colorado In a suit by set-
tlers in Wyoming on a stream which rises in Colorado to restrain
the diversion of water from such stream in Colorado, complainants
need not aver or prove that they have conformed to police regu-
lations of the State of Wyoming regulating the distribution of
water in that State. ' *

The effect of a declaration of State or public ownership was
considered in Hoge v. Eaton and in Perkins County v. Graff,**
and in both held not to affect the question. The latter was a case
in the United States circuit court of appeals for the eighth circuit
on appeal from the United States circuit court for the district of
Nebraska. It involved the legality of the issuance of certain bonds
by Perkins county, Nebraska, to aid in the construction of an ir-
rigating canal. One paragraph of the syllabus, as prepared by
the court, reads as follows: ''Drawing water through a canal from
one State into another for the purpose of irrigating lands in the
latter State is not necessarily a violation of the constitution,- laws,
or policy of the former State, although that State reserves all the
waters lor itself and its . citizens, so far as they are necessary
for the beneficial uses to which the State and its citizens apply
them." And in the opinion, **When the proposition of the irri-
gation company is carefully and rationally considered, it is not
obnoxious to the constitution, the laws,* or the public policy of the
State of Colorado, and these bonds cannot be defeated because
the intention of the company was to draw the waters to irrigate
the lands of this county from without the State of Nebraska."
The court perceived no reason why the appropriation of water
might not be made for the irrigation of lands in one State by
means of the diversion of ivater from a stream in anothjer State,
naturally flowing from the latter State into the former.

In a case of a stream flowing from Montana to Wyoming, plain-
tiff, a Wyoming appropriator, got an injunction in the Federal
court against a Montana appropriator diverting in Montana,®* the

« 114 Fted. 441, 52 C. C. A. 243, 64 Howell v. Johnson (C. C), 89

and in both held not to aifect the Fed. 556.
question.

172

THE LAW OF APPROPBIATION.

court saying: **The idea that there can arise any international
water right question in the case of an appropriation of waters
of an unnavigable stream cannot be maintained." In another®
a diversion was made in Montana to injury of rights in Wyoming,
the stream flowing from the former to the latter. Injunction was
granted in Montana. In another^ defendants in California as
riparian owners diverted water f rjpm the west fort of th^ Carson
River to the injury of plaintiffs, appropriators in Nevada. Decree
was rendered in California settling rights. In another case the
question was of interstate use. It was held that Colorado will not
decree rights for use in New Mexico though diverted in Colo-
rado,^ stating that the question was of first impression in Colo-
rado. In. another case a stream flowed from Nebraska to Kansas
and it was said: **It would seem that the fact of plaintiff's resi-
dence beyond the border of this State [in Kansas where his mill
was], and that his mill is located there, ought not to deprive
him of any rights which the laws of our State give to a lower
riparian owner. Any attempt of our legislature to discriminate
ag^at him as compared with resident mill owners would be
promptly declared unconstitutional by the Federal courts. Any
such determination by the courts w^ould seem to be equally ob-
noxious to the Federal constitution. It seenm clear that the plain-
tiff should be allowed the same standing as one of our own citizens
with a mill on this side of the State line.*' ^

In Conant v. Deep Creek Co.,®® all parties both diverted and used
the water outside the territorial jurisdiction of Idaho, where the
decree under consideration was rendered. Tlie Utah court denied
th^ efficacy of the decree in questiop quieting title, but acknowl-
edged the right of the Idaho court, on obtaining personal juris-
diction, to act by injunction against upper owners, saying: **The
Idaho courts, therefore, have ample and complete jurisdiction to
protect the rights of respondents to have the water which they
have appropriated, and which they divert in Utah, flow through
the channel of the stream, and to limit and determine the rights
of the Idaho proprietors with reference thereto.'* The substantial

«5 Morris v. Bean (Mont.), 146
Fed. 425.

06 Anderson v. Bassman, 140 Fed.
22

67 Lamson v. Vailes, 27 Colo. 201,
61 Pac. 231.

68 Cline V. 9tock, 71 Neb. 70, 98
N. W. 456, 102 N. W. 265.

69 23 Utah, 627, 90 Am. St. Bep.
721, 66 Pac. 188.

e 98

WHAT CAN BE APPROPRIATED.

173

effect of the decision was that the Idaho court was not vested with
juHsdietion to determine as between themselves the rights of the
several appropriators who diverted water from the stream in Utah,
and nsed the same for irrigating lands in that State, and to quiet
their titles thereto. In this connection^ affirming the same point,
the Wyoming court says in Willey v. Decker: **If, therefore, a de-
cree adjudicating the various' priorities of the parties would operate
as a decree quieting the title to the lands of plaintiffs WiHey and
illlison in another State, it is quite obvious that it would be beyond
the jurisdiction of the court. But, for the reasons stated, we shall
decline at this time to go into the matter further."

The validity of an appropriation is governed by the laws of the
State where made.*^*^ Appropriation good where made is recognized
in all other States.''^

Action to quiet title lies in State where both diversions and use
are made, and must be brought there, where the realty (water right)
is situated. If a cross-complaint sets up a Califoi^iia right, this
may be examined into for defensive purposes, though not be itself
quietied.^^ The Federal court in Nevada, having first acquired ju-
risdiction, is exclusive of California State court where a. suit was
later instituted.'''

A statute prohibiting the diversion of domestic waters to points
outside the State has been upheld.''^

The threatened pollution of the waters of a river flowing between
States, under the authority of one of them, thereby putting the
health and comfort of the citizens of the other in jeopardy, pre-
sents a cause of action justifiable under the constitution; that is,
the supreme court of the United States will have original juris-
diction if one of the States brings suit against the other.''*

70 Morria v. , Bean (Mont.), 146
Fed. 428 (affirms Morris v. Bean, 123
Fed. 618); Willey v. Decker; Ander-
son V. Bassman, 140 Fed. 22.

71 Willey V. Decker, 11 Wyo. 496,
100 Am. St. Bep. 939, 73 Pac. 210;
Morris v. Bean (Mont), 146 Fed.
430.

72 Bickey etc. Go. v. MiUer, 152
Fed. 14. Now on appeal to the
Vnlted States supreme court.

73 Ibid.

74 McCarter v. Hudson etc. Co.,
70 N. J. Eq. 695, 65 Atl. 489, affirmed

by the United States Supreme Court,
April 6, 1908, not yet reported. See,
also, Bigelow v. Draper, discussed
supra, see, 36. See 8 H. L. B. 138,
^* Power of a State to divert an In-
terstate Stream* ' ' See, also, 2 Colum-
bia Law Bev. 364.

7S Missouri V. Illinois etc. District,
180 U.S. 208, 46 L. ed. 497, 21 Sup.
Ct. Bep. 331. See this case com-
mented on in Kansas ▼. Colorado ,
185 U. S. 125, 46 L. ed. 838, 22
Sup. Ct. Bep. 552.

174

THE LAW OP APPROPRIATION.

§S »»»,»

§ 98a. Same. — From the foregoing statement of decisions it is
believed that the following propositions, among others, may be de-
duced : .

(a) The separation of the stream by State lines does not lessen
the right to make an appropriation upon it in a State where ap-
propriation is allowed.

(6) The appropriation thus made in a State' where the law
of appropriation is recognized is independent of the place to which
the water is conducted, and an appropriation may hence be made in
one State for use in any other to which the water may be con-
ducted.

(c) Rights on a stream valid ip the State where obtained are
recognized in all other States; and hence, not only is the appro-
priation recognized in other States, but likewise prior rights on
the stream obtained in other States, whether of appropriation or
riparian rights, will be everjrwhere else accorded recognition, and
the appropriator will not be allowed to interfere with them. The
fact that riparian rights are recognized in one of the States (Mon-
tana, for example, following the California doctrine) and not in
the other (Wyoming, for example, rejecting the California doc-
trine) is hence immaterial. The Wyoming court will, on the prin-
ciples of comity, recognize the riparian rights existing in Montana,
just as it will recognize the appropriations made there.

(d) Where the waters diverted in the upper State (Montana)
are ditched across the boundary into the lower (Wyoming), the
court in the lower State may enjoin a hostile diversion in the
upper State, because a ditch (with the water right appurtenant
thereto) is an entirety and the injury follows all along the line,
making the hostile diversion in Montana likewise an injury in
Wyoming. This obviates the difficulty arising from the rule that
the courts of one State will not adjudge matters involving title to
real estate situated in another State.

(e) An action will not lie in the lower State to quiet title
against claims in the upper State.

§ 99. Same — Kansas v. Oolorado.^ — Kansas' sued Colorado in
the supreme court of the United States to enjoin appropriations
in Colorado on the Arkansas River, claiming that the loss of the

76 206 U. S. 46, 51 L. ed. 956. Opinion by Mr. Justice Brewer.

§j 100, 101 WHAT CAN BE APPROPBIATBD. 175

water would irreparably injure Kansas as a State, and as a riparian
proprietor, and private riparian proprietors in Kansas (which up-
holds riparian rights under the California doctrine while Colo-
rado does not). The decision was considered from the point of
injury to Kansas as a State, aside from rights of itself or in-
dividuals as riparian proprietors; its prosperity as distinguished
from its property rights or those of its citizens.

It was held that Colorado would be irreparably injured by an
injunction, without corresponding benefit to E[ansas. In fact, the
ultimate prosperity of Kansas may in fact be increased by the
Colorado diversions. There has been no widespread serious injury
to Eai]sas from past diversions, though there was some detriment.
Kansas herself recognizes appropriation as well fis riparian rights
and hence cannot complain if appropriation is made the. sole test
between herself and Colorado. (So held.) **At the same time
it is obvious that if the depletion of the waters of the river by
Colorado continues to increase, there will come a time when Kan-
sas may justly say that there is no longer an equitable division
of benefits, and may rightfully call for relief against the action
of Colorado, its corporations and citizens, in appropriating the
waters of the Arkansas for irrigation purposes. ' ' ^"^

I 100. Artificial Watercourses. — Water in ditches, canals,
flames, etc., cannot be appropriated. It is personalty, dealt with
as a corpus, and subject to the absolute property of its owner while
in his possession. The law of appropriation applies only to naturaj
bodies of water. The law concerning artificial watercourses will
be considered later.*^

§ 101. Diffused Surface Water. — Diffused surface water from
rain and melted snow cannot be appropriated.'^^ Its presence and
movements are too capricious to found any right upon distinct
from the land where it is gathered, and such water is owned by the
owner of the land where it happens to \ie.^ In fact, the question

'7 Concerning this case, see c. I, c. Pock, 136 Cal. 466, 89 Am. St. Rep.

n, ante. 169, 69 Pac. 98. See ante, sec. 94,

"^ Infra, sec. 150. Watercourses.

™ Lux V. Haggin, 69 Cal. 255, 10 80 Ibid., and compare the French

Pw, 674; Jacob v. Lorenz, 98 Cal. Law, as given in "Droit Civile Fran-

332, at 339, 33 Pae. 119; Los An- cais," by Aubrey & Bau, 4th ed.,

geles Assn.' v. Los Angeles, 103 Cal. Vol. Ill, p. 43: "Concerning rain

^h 37 Pac. 375 ; Sanguinetti v. water falling on private, land. These

176 THE LAW OF Al^PEOPRIATION. § 101

ihat usually gives difficulty is how to get rid of it, some courts
calling it a common enemy ; but that is another question.^

**In a dry and arid climate, where irrigation is necessary in order
to cultivate the soil, the question as to the rights of the pro-
prietors of upper and lower lands in regard to the waste water
has seldom arisen, because, as a general rule, the lower landowner
is willing to receive, dispose of, and profit by the use of, all water
Sowing from the upper lands of another in irrigating his own land.
It is seldom that any landowner in this State has occasion to com-
plain of too much watei:.*' ^

The right to impound storm waters after they have reached the
channel is a matter upon which the decisions are in great conflict
If the impounding works be such as to bring into the channel
waters that otherwise would not reach the stream at all, the prin-
ciple of recapturing the fruits exclusively produced by one's own
labor would seem to apply .®^' But there are decisions that even
where the storm waters would reach the channel naturally, they are
still not part of the natural flow, but retain their character as
surface waters which may be impounded and diverted from lower
claimants on the stream.®* To the writer this latter view seems
indefensible as a matter of simple fact.

waters belong by riflbt of aocession 86 Pae. 836 ; Davis v.. Frej, 14 OUa.

and entirely independent of the fact 340, 69 L. B. A. 460, 78 Pae. 180;

of actual use, to the owner of the Cole y. lifissouri Co. (Okla.), 94

land on which they fall. He may Pftc 540. Whether the oommoa..law

dispose of them as he pleases, or civil law rule of surface vraters

whether by retaining them on his prevails in Oregon has not been dt-

land, or by letting others take them, cided up to the decision in Briee v.

or by letting them take their natural Oregon etc. Co., 47 Or. 350, 83 Pae

course to lower lands." ^Des eaux 843. See Kane v. Littlefleld (Or.),

pluviales tombant sur un terrain 86 Pae.* 544; Peters v. Lewis, 33

privd. Ces eaux appartiennent par Wash. 617, 74 Pae. 815; Ladd v.

droit d 'accession, et ind^pendament Bedle, 12 Wyo. 362, 75 Bac. 691.

de tout fait d 'occupation, au pro- The common law and not the ^vil

pridtaire du terrain sur lequel elles law rule is adopted in Oklahoma.

tombent^ B pent en disposer k son Chicago By. v. Groves (Okla.), 93

gr6, soit en les retenant dans son Pae. 755. In Oregon, by statute,

fond, soit en les e6dant k des tiers, ditches using surface waters are gov-

soit enfin les laissant couler sour les emed by the same rules of priority

fonds inf^rieurs suivant la pente nat- as streams. Brosnan v. Harris, 39

urelle du terrain.") Or. 148, 87 Am. St Bep. 649, 65

81 See Ogbum v. Conners, 46 Cal. . Pae. 867, 54 L. B. A:. 62^.

346, 13 Am. Bep. 213, and McDaniel 82 Boynton v. Longley, 19 Nov. 69,

V. Cummings,^ 83 Cal. 515. 23 Pae. 3 Am. St. Bep. 781, 6 Pae 437.

795, 8 L. B. A. 575: Wood v. Moul- 8^ Infra, sisc. 234.

ton, 146 Cal. 317, 80 Pae. 92; Ce- M Infra, see. 319.
derberg v. Dutra, 3 Cal. App. 572,

{§ 102, 103

WHAT CAN BB APPWPKIATEP.

177

§ 102. LiJciB and Ponds.^— Whether wat^rii of a Ibke or poad
can be appropriated is seldom diseiisaed. The oasea almost in-
yariably speak o^ly of water flowing in watercourses.^

The reeent statutes in the arid States usually expressly include
lakes, Of else contain sueh general words m ''all waters of the
State," or ''all streams and water sources," which would cover
the matter. In California, howeyer, the statute^ speaks only of
streams and ninning waUr. Howei»»r, riparian rights attached
at common law to lakes and ponds. The law of appropriation is
assumed likewise to apply to them, though the point is not
speoifieally raised.^ It is probable that lake water may be ap-
propriated in California as elsewhere, though not mentioned in
Civil Code, section 1410, for the California court has said (in an-
other connection) that that section is not exhaustive of the kinds
of water that can be appropriated.^ The California court has said
Bince the above was written (in the first edition) : *'We think the
better doctrine in respect to the character of a stream from which
the statute provides for appropriations is that it is not necessary
that the stream shoiild continue to flow to the sea, or to a junction
with some other stream. It is sufiicient if there is a flowing stream ;
aod the fact that it ends either in a swamp, in a sandy wash in
which the water disappears, or in a lake in which it accumulated
upon the surface of the ground, will not defeat the right to make
the statutory appropriation therefrom, and we can see no reason
why the appropriation, in such a case, may not be made from the .
lake in which the stream terminates, and which therefore constitutes
a part of it, as well as from any other part of the watercourse." *^

S 108. Swamp Lands. — ^Title to public lands of the character
known as "swamp lands" rests in the State and not in the United
States, and they are dealt with by special statutes and rules of their

» See, also, infra, see. 292.

^ And sueh also is the language
of Cal Civ. Code, see. 1410.

w Civ. Code, 1410.

W Weaver v. Eureka ete. Co., 15
Cal 271, and Osgood v. El Dorado
etc. Co., 56 Cal, 571; a dictum to
tbe same effect appears in Baxter v.
Oilbert, 125 Cal. 580, 58 Pac. 120,
374.

» Kfttz V. WaBdnshaw, 141 Cal.
Wfttar Bights— 12

116, 99 Am. St. Sep. 85, 70 Pae.
663, 74 Ifac. 766. The appropriation
of the waters of a lake was upheld in
Cole V. Biehards Irr. Co., 27 Utah,
205, 101 Am. 8t. Bep. 962, 75 Pae.
876. See, also, Pomeroy on Biparian
Bights, see. 51. Aasmmed in Kinney
on Irrigation, ptusim.

80 Duckworth v. Watsonville etc.
Co., 150 Cal. 520, 89 Pao. 888.

178

THE LAW OF APPROPBIATION.

§ 103

own.®^ The State of California having been admitted into the
Union on the ninth day of September, 1850, on the twenty-eighth
of the same September the Congress passed an act ''to enablf
the State of Arkansas and other States to reclaim the swamp and
overflowed lands within their limits," known as the Arkansas act.
by which the State of California became the owner of swamp lands,
on the twenty-eighth day of September, 1850.

Rules for the disposal of swamp lands in California are contained
in the Political Code.*^ Section 3446 provides that whenever the

91 The law coneeming them is dis-
euflsed in liuz ▼. Haggin, 69 Cal. 255,
10 Pae. 674; Heckman v. Swett, 99
Cal. 303, 33 Pae. 1099.

92 Part 3, title 8, chapter 2. Con-
oenung reclamatioii distriets, refer-
ence may be made to the following
eases (see, also, eases on irrigation
districls cited supra, sec. 30, and
infra. Part V, c. IV). Kimball v.
Reclamation District Fund Commrs.,
45 CaL 344; Haffar v. Board of
Supervisors, 47 Gal. 222; People v.
Coghill, 47 Gal. 361; Bachman y.
Meyer, 49 Gkl. 220; People v. Hagar,
49 Cal. 229; Ferran y. Board of Su-
pervisors, 51 Cal. 307; Hagar v.
Board of Supervisors, 51 Cal. 474;
Balston v. Board of Supervisors, 51
Cal. 592; People v. Hagar, 52 Cal.
171; People v. Ahem, 52 Cal. 208;
People V. Reclamation Dist., 53 Cal.
346; People v. Houston, 54 Cal. 536;
People v. Williams, 56 CaL 647;
Reclamation Dist. No. 124 v. Coghill,

56 Cal. 607; Levee Dist. No. 1 v.
Huber, 57 Cal. 41 ; People v. Haggin,

57 Cal. 579; WiUiams v. Board of
Supervisors, 58 CaL 237; Cosner v.
Board of Supervisors, 58 CaL 274;
Reclamation Dist. No. 3 v. Kennedy,

58 CaL 124; Bixler's Appeal, 59 CaL
550; Mitchell v. Hecker, 59 Cal. 558;
Bizler v. Board of Supervisors, 59
CaL 698; Swamp Land Dist. No. 110
V. Feck, 60 CaL 403; Reclamation
Dist. No. 3 V. Goldman, 61 Gal. 205;
Reclamation Dist. No. 108 v. Evans,
61 CSaL 104; Newman v. Superior
Court, 62 CaL 545 ; Swamp Land Dist.
No. 121 V. Haggin, 64 Cal. 204, 30
Pac. 631; Williams v. Board of Su-
pervisors, 65 CaL 160, 3 Pac. 667;
Reclamation Dist. No. 3 v. Goldman,
65 Cal. 635, 4 Pac. 676; Reclamation
Dist No. 108 V. Hagar, 66 CaL 54,

4 Pac. 945; People v. Hagar, 66 Gkl.
59, 4 Pftc. 951 ; Reclamation Dist. No.
3 V. Parvin, 67 Cal. 501, 8 Pac 43;
People v. La Rue, 67 Cal. 526, 8 Pic.
84; Swamp Land Dist. No. 307 v.
Gwynn, 70 Cal. 566, 12 Pac 462;
People V. Hulbert, 71 CaL 72, 12 Pac
43 ; Standf ord v. Felt, 71 Cal. 249, 6
Pac. 900; Lamb v. Reclamation Dist.
No. 108, 73 Cal. 125, 2 Am. St. Rep.
775, 14 Pac. 625; People ex reL At-
torney General v. Parvin. 74 QiL 549.
16 Pac. 490; Swamp Land Dist. Noi
407 V. Wilcox, 75 CaL. 443, 17 Pac
241; Hntson v. WoodbridgB Protec-
tion Dist. No. 1, 79 CaL 90, 61 Pac
549, 21 Pac. 435; Lord v. Dunster.
79 Cal. 477, 21 P&c 865; People v.
Gnnn, 85 Cal. 238, 24 Pac 718; Rec
lamation Dist. No. 124 v. Gray, 95
CaL 601, 30 Pac. 779; Swamp Land
Dist. No. 150 V. SUver, 98 CaL 51,
32 Pac. 866; Marshall v. Taylor, 98
CaL 55, 35 Am. St. Rep. 144, 32
Pac. 867; Gwynn v. Diersen, 101
Gal. 563, 36 Pac. 103; Reclamation
Dist. No. 542 v. Turner, 104 CaL
334, 37 Pac. 1038; Lower Kings
River Reclamation Dist. No. 531 v.
PhiUips, 108 CaL 306, 39 P^. 630,
41 Pac. 335; Swamp Land Dist. No.
307 v. GUde, 112 CkL 85, 44 Pac
451; Barnes v. GUde, 117 CaL 1, 59
Am. St. Rep. 153, 48 Pac 804; Peo
pie ex rel. Sels v. Reclamation Dist.
No. 551, 117 CaL 114, 48 Pac 1016;
Reclamation Dist. No. 551 y. Runyon,
117 CaL 164, 49 Pac 131; Tulare
County v. May, 118 CaL 303, 50
Pac. 427 ; People v. Reclamation Dist.
No. 36, 121 Cal. 522, 50 Pac 1068,
53 Pac. 1085 ; Hensley v. Reclamation
Dist., 121 Cal. 96, 53 Pac 401 ; Wein-
reich v. Hensley, 121 CaL 647, 54
Pac. 254; Reclamation Dist. No. 537
V. Burger, 122 CaL 442, 55 Pfcc 156;

§ 104

WHAT CAN BE APPROPRIATED.

179

owners of more than one-half of any body of swamp land and over-
flowed lands desire to reclaim the same, they may present to the
board of supervisors a petition for the formation of a reclamation
district.^ It is held that this vests in the supervisors absolutely
the determination whether the lands are unreclaimed and whether
they are subject to independent reclamation ; and being so vested,
the determination is legislative in its nature, and the courts are
powerless to interfere, or to restrain the exercise of the power by
the board of supervisors.®*
It has been said that there are very grave doubts whether, upon

■

a fair interpretation of the State statutes providing for reclama-
tion, the barring of the flow of a regular and defined stream from
the lands below, not swamp, is contemplated, or whether the State
would have power, by any statute, to authorize such a proceeding.
The statute seems to have in view levees along the sides of water-
courses, and not across them.^

§ 104. Undergroimd Water. — ^How far the law -of appropria-
tion applies to underground water is considered elsewhere. It is
thought best to consider all aspects of the law of underground
water together in a single place.**

Clare v. Sacramento liiiectric etc. Co.,
122 CaL 504, 55 Pac 326 ; People ex
rel. Cuff V. City of Oakland, 123 Cal.
598, 59 Pac. 445 ; Lower Kings Biver
Beclamation Diet. No. 531 v. MeOul-
Uh, 124 Cal. 175, 56 Pac. 887; CaU-
fornia Pastoral Co. v. Whitson, 129
Cal. 376, 62 Pac. 28; Beclamation
Dirt. No. 108 V. West, 129 Cal. 622,

62 Pac. 272 ; In re Werner, 129 Cal.
567, 62 Pac. 97; People ex rel. Thisby
V. Beclamation Dist., 130 CaL 607,

63 Pac 27; People v. Levee Dist.,
131 CaL 30, 63 Pac. 676; Adams t.
Modesto, 131 CaL 501, 63 Pac; 1083 ;
Beclamation Dist. No. 563 y. HaU,
131 Cal. 662, 63 Pac. 1000 ; National
Bank v. Greenlaw, 134 CaL 673, 66
Pile. 963; McCord v. Slavin, 143 Cal.
325, 76 Pac. 1104; San Francisco
Sayings Union v. Beclamation Dist.

No. 124, 144 Cal. 539, 79 Pac. 374;
Beclamation Dist. No. 551 y. Van
Loben Sels, 145 Cal. 181, 78
Pac. 638; Glide y. Superior Court,
147 CaL 21, 81 Pac. 225. See, also,
State y. Superior Court, 42 Wash. 491,
85 Pac. 264.

03 Prior to the enactment of the
Political Code, similar legislation ex-
isted in the statutes, and section 3478
of the Political Code allowed recla-
mation districts formed under laws
prior to March 27,' 1868, to be re-
organized. See San Francisco Say-
ings Union y. Beclamation District,
144 CaL 639, 79 Pac. 374.

M Glide y. Superior Court, 147 Cal.
21, 81 Pac. 225.

86 Lux y. Haggin, 69 Cal. 255, 10
Pac. 674.

96 Infra, Part IIL

lao TBE LAW OF APPBOFBU.TI0K.

CHAPTER VII.

HOW AN APPBOPBIATION 13 MADE— THG OBIQINAL

METHOD.

§ 105. The original method.

§ 106. Origin of this method.

§ 107. Ownership of land not needed.

A. BY ACTUAL DIVERSION.

§ 108. Distingnished from statutory method.

§ 100. The statutes do not apply.

§ 110. Settlement on stream banks not alone eneagfa.

B. TO SECUBE THE BENEFIT OP RELATION.

§ 111. Object of statutory provisions.
§ 112. Provisions chiefly declaratory only.

C- NOTICE.

9 113. Form of notice.

§ 114. Contents and recording of notice.

{ 116. Purpose ef notice.

§ 116. The notice operates as a wamii^^.

§ 117. Failure to post notice.

$ 118. Notice alone not enough.

D. BENEFICIAL PURPOSE.

{ 119. Necessity for bona fide intention.

§ 120. What constitutes a beneficial purpose.

3 121. Motive.

§ 122. Evidence of intention.

§ 123. Intention alone not enough.

E. DILIGENCE.

§ 124. Necessity for diligence.

§ 125. What constitutes diligence.

§ 126. Delay during legal proceedings.

§ 127. Failure to use diligence.

F. COMPLETION OF CONSTRUCTION WORK.

§ 128. Completion of work.

§ 129. What constitutes completion.

§ 130. Means of diversion.

§ 131. Diversion alone.

§ 1^5

HOW AN APFROFRIATION IB ttABE.

ISI

. #

S 132. TTse of existiDg ditches.

S 133. Same.

§ 134. Changes in course of eonst^ction.

a. BELATINO BACK.
§ 135. Origin of the doctrine.
S 136. Eifect of relation.

H. ACTTIAL APPLICATION.
§ 137. Necessity for actual' application and use.
§ 138. Same.
§ 139. Recapitulation.
i 139a. Supi^etnentary proceedings. .

§ 105. The Original Method.— Using the California Civil Code^
as a model for legislation, and, consequently (as the California
Code is chiefly only declaratory of the early decisions), basing their
method upon the early California decisions, the following method
was up to recent years followed throughout the West by statute, or,
in the absence of statute, by decision of the courts.^ But in recent
years, especially since the legislative sessions of 1903, most of the
States have adopted the ** irrigation code'' system described in the
next chapter, which originated in Wyoming, as a kind of sys-
tematization of the California principles, and the older statutes
and decisions are thus, so far as the irrigation code method differs
from that in this chapter, superseded; though that method is
founded at the bottom on the ideas of the method described in this
chapter. At the present day, the method here set forth remains
snbgtftntially in California, Kansas, Montana and Washington,^

1 Sees. 1410-1422.

2 Arizona.— 'Hey. Stats. 1901, p.
1042, sec. 4169.

ColofoA).— -Sieber v. Frittk, 7 Colo.
148, 2 Pae. 901; Farmers' etc. Co. v.
Southworth, 13 Colo. Ill, 21 fac.
102«, 4 L. B. A. 767.

Idaho.— 2 Idaho Codes, seci 2583.
fend Point etc. Co. v. Panhandle etc.
Co., 11 Idaho, 405, aS Pae. 347.

Kansas. — See next note.

Montana.— See next note.

Nevada. — Comp. -Laws, 1900, sees.
356 et seq., 424.

^fftrojfco.— Comp. Stats. 1891, c.
93a, p. 844.

Orepon.— Hnis' Ann. Laws, p. 1930,
"«tt. 1-9. A more enlarged treatment,
still based on the California method,
^8 provided later. Stats. 1899, p.
1"2, Am. 1901, p. 136, 1903 (8p.

Bess.), p. 25. But the statnte of
1905 (Stats. 1905, p. 401) is based
rather upon the new statutory or "ir-
rigation code" method. (See n^zt
chapter.)

Texas. — Act of March 19, 1889.

UtaK^nev, Stats. 1898, sees. 1261-
1275.

Washington. — See next note.

H^yomtn^.— Laws 1869, p. 810.

3 California. — Civ. Code, sees. 1410-
1422.

Kansas. — Gen. Stats. 1901, sees.
3609-3613; Gen. Stats. 1905, sec.
3791 et seq.

Montana. — Stats. 1907, p. 489;
Civ. Code, 1896, sees. 1880-1892; Am.
Stats. 1901, p. 152.

Washington. — Ballinger's Codes,
1897, see. 4092; Pieree's Code 1905,
sec. 5132.

182 THE LAW OP APPROPRIATION. §§ 106, 107

while the statutes of Oregon^ and Texas are a compromise between
the two methods.^

In the following, decisions from all jurisdictions are given, since,
until recently changed by statute, the rules were the same in all,
following the California decisions.

The method described in this chapter might be called the original
method ; and that in the next chapter, the new method.

§ 106. Origin of This Method. — ^Having found water that can
be appropriated and a proper place to appropriate it, the right
to the water is not complete until the water is actually taken into
one's possession, or rather, until all work preparatory to the actual
use of the water is completed, since that is the equivalent bf taking
possession; it is the nearest to possession that the nature of the
right makes possible.® The appropriator acquires no right until
he actually takes possession.'^

The rules developed in the early dajns in California, but the rules
still prevail in California substantially as laid down in the early
decisions of the court. The proposition around which these rules
center is, it should be repeated, that the requisites are those fur-
nishing an equivalent to taking possession of the water, the right
being a possessory right.

§ 107. Ownership of Land Unnecessary and Water Need not be
Ketumed to the Stream. — It has previously been pointed out that
there are no personal requisites concerning the appropriator. It is
immaterial whether he is an alien, minor, riparian proprietor, etc.^
It will be well to repeat here that ownership of any land is not a
requisite either ; the appropriator need not locate any land.^ That
is a distinguishing feature of the law of appropriation. Water may
be appropriated for use any place by anyone, and often is di-
verted by companies who own land, to supply distant people.
The supreme court of the State of Washington says that "the
right of appropriation, as defined by the best authorities, is not
controlled by the location of the stream with reference to the prem-

* 1905, p. 401, sec. 1. IT. S. 663, 35 L. ed. 305, 11 Sup. Ct
6 See statutes in Part YI. Rep. 641.

• Conger v. Weaver, 6 Cal. 548, 65 8 Ante, sec. 70.

Am. Dee. 528 (quoted infra, sec. 9 Ante, sec. 63. Except aa recent

135) ; Thompson v. Lee, 8 Cal. 275. irrigation codes change the rule, sec
T Bjbee v. Oregon etc. Co., 139 184, infra.

§f 108, 109 HOW AN APPBOPBIATION IS MADE.

183

ises which are irrigated." ^^ The Colorado court says in the case
last cited: ''The appropriator, though he may not own the land on
either bank of a running stream, may divert the water there-
from, and carry the same whithersoever necessity may require for
beneficial use, without returning it, or any of it, to the natural
streiun, in any manner. ' '

A. BY ACTUAL DIVEBSION.

108. Distinguished from the Statutory Method.— An appro-
priation may be made by a completed actual diversion and use
(without following the statute) or else by proceeding under the
statute. The difference is that in the latter case the appropriator
can daim the benefit of the doctrine of relation, while in the former
he cannot. The difference, however, existed from the earliest times,
and the statute merely fixed the details of the method by which
an appropriator could secure the benefit of the doctrine of rela-
tion." .

These two are the only methods. Unless there is a right by
aetual diversion as below set forth, or by compliance with the
statute, it cannot be spoken of as an appropriation.^*^ There can
be no such thing as a constructive appropriation, resting, as the
matter does^ so largely upon actual inient.^^ There can be no ap-
propriation by prescription, as an appropriation is an original ac-
quisition from the United States, against whom the statute of lim-
itations does not run.^^ This rule precludes an appropriation im-
properly made, but continued for five years, from being of any
force, the land having been public land part of that time.^^

§ 109. The Statutes do not Apply. — ^Where one does not seek
the benefit of the doctrine of relation,^* and actually completes his

w Offield V. Ish, 21 Wash. 277, 57
^ 809. See, also, Long on Irri-
gation, 50; Thomas v. Guiraud, 6
Colo. 530; Hammond v. Bose, 11
Colo. 524, 7 Am. St. Rep. 258, 19
Pac. 466; Oppenlander v. Left Hand
Ktch Co., 18 Colo. 142, 31 Pac. 854.

" De Necochea v. Curtis, 80 Cal.
3W, 20 Pac. 563, 22 Pac. 198 ; Wells
▼. Kantes, 99 Cal. 583, 34 Pac. 324.

12 Senior v. Anderson, 115 Cal.
496, at 505, 47 Pac. 454.

13 Kelly V. Natoma etc. Co., 6 Cal.
105.

w Matthews v. Perrera, 45 Gal.
51; Wilkins v. McCue, 46 Cal. 656;
Jatunn v. Smith, 95 Cal. 154, 30 Pac.
200; Smith v. Hawkins, 110 Cal. 122,
42 Pac. 453.

15 Ibid. See infra, sec. 252.
' i« Infra, sec. Ill et seq.

184 THB LAW OF APPBOPBIATTON. I 109

constmetion work, and diyerts and uses the water before others in-
tervene, his claim as an appropriator ii^ perfectly valid, and alwavs
has been. An appropriation is m^r^y the acquisition of a Hght
from the government. If there are Hval claimants, the govern^
ment demands compliance With the fitotutory formalities; bnt if
there are no rival claimants, the government is alone 'eonoerned,
and acquiesces, because such was the role under the early customs.
As between the government and the appropriator there are only
two requisites for this — ^the actual diversion of the water and that
the diversion is for a beneficial purpose. If there are no rival
claimants of any kind up to &uch completion of work, that is
enough to satisfy the government, who is then alone concerned,
and the right is complete against later attack on this groond.^^
The headnote to Wells v. Mantes, supra (the leading case), sums
up the decision as follows: "The scope and purpose of the provi-
sions of the Civil Code upon water rights were merely to establish
a procedure for the claimants of the right to the us6 of the water
whereby a certain definite time might be established as the date
at which their title should accrue by relation ; and a failure to com-
ply with the rtdes there laid down does not deprive an appropria-
tor by actual diversion of the right to the use of the water as against
a subsequent claimant who complies therewith." The decision
was that section 1419 of the Civil Code providing for forfeiture
for non-compliance with the code formalities does not apply to such
a case, the court saying: **To defeat the respondent's rights, ap-
pellants invoke section 1419 of the Ci^l Code, which reads: *A
failure to comply with such rules deprives the claimants of the
right to the use of the water as against a subsequent claimant who
complies therewith. * We think this provision does not refer to an
appropriator by actual diversion, but only to claimants seeking
the right to the use of water under the provisions of this chapter
of the code. This is made apparent by an examination of the pre-
ceding sections. Section 1415 provides: *A person desiring to ap-
propriate water must post a notice, in writing, in a conspicuous
place at the point of intended diversion, stating therein: that he
claims the water there flowing to the extent,' etc. Section 1416

IT Mitchell V. Canal Co., 75 Gal. Cal. 564, 23 Pac. 146; "WatteiBon ▼.

464, 17 Pac. 246; Wells v. Mantes, 99 Saldunbehere, 101 Cal. 107, 35 Pac.

Cal. 583, 34 Pac. 324; De Necochea 432; Taylor t. Abbott, 103 Oal. 421,

V. Curtis, 80 Cal. 397, 20 Pac. 563, 37 Pac. 408; Senior v. Anderson, 115

22 Pac. 698; Burrows v. Burrows, 82 C?al. 496, 47 Pae. 454.

i 100 HOll^ AN Af'PBOPBIATION 18 MADE. 185

re»d0: 'Within sixty days after the notice is posted the elaimant
tnvL^ eommence the estcavation ot coDsti*Hetidii of the work, etc'
Seetion 1418 reads: 'By a compliance with the 4bove rules the
daimant^s right to the use of the water relates back to the time
the notice was posted. ' It thus beeomeS apparent from these pro-
yifi&oni that the Word 'claimants' as used ifi section 1419 referis to
a party posting and teCording the notices required by the. provi-
sions of section 1415, and does not apply to an appropriator by ac-
tual diversion." In another case it was held that Where there
had been an actual application and use of water, the right of the
appropriator is not impaired by the fact that there h|UB been no
compliance with the provisions of the Civil Code for the acquisi-
tion of water rights.** -^^^d in a more recent' case *® Mr. Justice
l%aw said : " In order to make a valid appropriation it was not
necessary for Duncan to post and record a notice of appropriation
aa provided in the Civil Code.^ The method of acquiring a right
to the use of water as there prescribed is not exclusive. One may,
by a prior, actual, and completed appropriation and use, without
proceeding under the code, acquire a right to the water beneficially
used, which will be superior and paramount to the title of one
making a subsequent appropriation from the same stream in the
manner provided by that statute."^*

One who had long been using the water as appropriator was
protected in De Necochea v. Curtis ** against a later occupant claim-
ing as a riparian owner, though the appropriator had not com-
plied with the formalities required by the eode.^ In Wells v.
Mantes,^ he was likewise protected against a later appropriator
who did comply with the code. In Utt v. Frey,^ the appropria-
tor died, and his son-in-law entered and took possession without
any formal transfer. The latter 's right was upheld as a new ap-
propriation by actual diversion and use. In Qriseza v. Terwil-

i& Watteraon y. Saldunbeher^, 101 236: KimbaU v. Gearbart, 12 Oal. 29;

Cal. 107. Kelly v. Natoma W. Co., 6 Cal. 105;

!• Lower Ttile etc. Go. v. AngioM Hill y. King, 8 Cal. 336 ; Hoffman

etc. Co., 149 Cal. 496, 86 Pac. 1081. v. Stone, 7 Cal. 46.

» 8e«. 1415-1421. 22 80 Cal. 397, 20 Pae. 563, 22 Pac.

^^ Citing (In addition to the oases 198.

elted ill note fcbove) McOuire v. 23 Affirmed in Butrows v. Burrows,

Blown, 106 Cal. 672, 39 Fut. 1060, 82 Cal. 564, 23 Pac. 146.

^ L. B. A. 384 ; Cardoza y. Calkins, 24 99 C^l. 588, 34 Pac. 824.

117 CaL 112, 48 Pae. 1010; Mc- 25 106 Cal. 392, 39 Pac. 807.
IJoiaW V. Bear B. etc. Co., 18 Cal.

186

THE LAW OF APPROPRIATION.

S 110

liger ^ it was held that a transferee under a parol sale of the water
right takes no title by virtue of the sale, because of the statute
of f raudsy but if he actually takes possession and uses the water*
he has a good title as a new appropriator by actual diversion,
though the code formalities were not performed. In Idaho it has
been held that one having actually used the water is an appro*
priator.by actual diversion, and the fact that he thereafter posted
a notice does not impair his right to claim as such instead of under
the notice.^

In other States, while following the original method of appro-
priation, the same result was reached. The Montana court said
(after quoting from De Necochea v. Curtis and Wells v. Mantes,
supra) : **We think 'the construction of the statute by, the supreme
court of California is logical and correct, and are of the opinion
that the Montana act should be construed in the same manner.''^
Likewise in Idaho,^ Nevada,^ Colorado,'^ Wyoming®* and Wash-
ington.^

§ 110. Settlement on Stream Banks not Alone Enough. —

While the statutory formalities are thus dispensed with in favor
of an appropriator by actual diversion, that is as far as the law
goes in dispensing with formalities. The law recognizes no right
flowing from merely settling on the banks of a stream. A settle-
ment on the banks does not . constitute an appropriation where
nothing more is done. Aside from the question of riparian rights,
elsewhere considered, the settlement does per se give any right to
the water.^ In Walsh v. Wallace,^ the land was settled upon

«» 144 CaL 456, 77 Pac. 1034;
infra, sec. 228.

27 Brown v. NeweU, 12 Idaho, 166,
85 Pac. 385.

28 Murray v. Tingley, 20 Mont. 260,
50 P&c. 724. See, also, Salazar v.
Smart, 12 Mont. 395, 30 Pac. 676;
Morris v. Bean (Mont), 146 Fed. 425.

29 Idaho,—S&ud Point etc. Co. v.
Panhandle etc. Co., 11 Idaho, 405, 83
Pac. 347; Brown v. Newell, 12 Idaho,
166, 85 Pac. 387; Pyke v. Bumside,
8 Idaho, 487, 69 Pac. 477.

30 Ophir etc. Co. v. Carpenter, 4
Nev. 534, 97 Am. Dec. 550.

31 Sieber v. Frink, 7 Colo. 148, 2
Pac. 901; Water Supply Co. v. Lari-
mer Co., 24 Colo. 322, 51 Pac. 496,

46 L. R. A. 322; Denver Co. v. Dot-
son (Colo.), 38 Pac. 322.

32 Morris y. Bean (Mont., but eon-
struinff Wyoming law), 146 Fed. 425.
See, flJso, 60 Am. St. Bep. 800, note.

83 KendaU v. Joyce (Wash.), 93
Pac. 1091.

34 Walsh V. Wallace, 26 Nev. 299,
99 Am. St. Bep. 692, 67 Pac. 914;
Leggat V. Carroll, 30 Mont. 384, 76
Pac. 805; Bobinson v. Imperial etc.
Co., 5 Nev. 44; Willey v. Decker, 11
Wyo. 496, 100 Am. St. Bep. 939, 73
Pac. 210, saying: '< Under the de-
cisions of this court that fact alone
confers upon them no title to a right
to* the use of the waters of the
stream."

35 Cited supra.

i 110

HOW AN APPBOPBIATION IS MADE.

187

for ag^cultural purposes, but the water was not diverted, and as
riparian rights are not recognized in Nevada, the settler was held
to have no right to the water. In Bqbinson v. Imperial etc. Co.,^
the land was taken up for a millsite and the court said: ^'The
digging of a ditch oh public land is not an appropriation of the
land for a millsite, nor is the mere appropriation of a millsite an
appropriation of water for purposes of milling." ^'It would be
as absurd to say that the digging of a ditch is an appropriation
of land sufficient for a millsite, as to say that to appropriate a
millsite would be an appropriation of water for milling pur-
poses." In Leggat v. Carroll, cited supra^ it was held that the
location of a placer mining claim is not an appropriation of the
water in the stream.

In Schwab v. Beam,^^ Judge Hallett did hold that the location
of a placer claim gave a right to the water thereon. The court
used the following words: ^'Nothing in the constitution of this
State or in the law relating to irrigation in any way modifies or
changes the rules of the common law in respect to the diversion of
streams for manufacturing, mining or mechanical purposes. In
Colorado, as elsewhere in the United States, the law is now as it
has been at all times, that for such purposes each riparian owner
may U9e the waters of running streams on his own premises, allow-
ing such waters to go down to subsequent owners in their natural
channel." This seems to show that the decision rested not on the
principles of appropriation, but on those of riparian rights. The
placer claimant under the California doctrine has a right to the
water in that way,^ but not by appropriation. Schwab v. Beam
would seem to be an attempt to apply the California doctrine in
Colorado, a position which the State court repudiates.^ The case
has been criticised."*®

A tendency to weaken in enforcing this rule that merely set-
tling on the stream is not an appropriation is appearing in state-

so Cited gupra.

37 86 Fed. 41 (C. C. Colo.).

38 CrandaU v. Woods, 8 Cal. 136;
Leigh V. Independent IMteh Co., S
CaL 323.

^ Supra, sees. 23, 34 et seq.

^ MorriBon's Mining Bights, elev-
enth edition, page 180, saying: "This
is an extreme holding on what seems

to us a veiy doubtful position." In
the twelfth edition: "This is an ex-
treme holding, and seems to us an in-
defensible position." And recently
^ doubted whether tenable as a propo-
* sition under the law of appropriation
aside from riparian rights. Mill's Ir-
rigation Manual, p. 39.

188 I^E LAW OP APPROPRIATION. § 111

ments to the effect that proof of benefit to the land by ^natural sub-
irrigation will congtitute such natural- sub-irrigation an apjiropfi^
tion by actual use, though without diversion. Thus in an Idaho
case *^ it is said : **So far as the record shows, appellants' land may
produce crops by sub-irrigation, hence, never necessary to make
an appropriation of any of the Waters of the streams,'' and in
the same court it was held^* that while the fact that a stream in*
its original native condition was dammed so as to cause the watefs
to percolate through and sub-irrigate adj&cifent meadow lands will
not of itself justify the owner of such lands in maintaining the
streain dammed in such condition to the injury of other appropria-
tors, yet it may, on the other hand, be sufficient to initiate a right
for a quantity of the waters of such stream adequate for the sur-
face irrigation of the lands previously so sub-irrigated therefrom.
Such a rule, if generally adopted, would be a long step toward a
return to the rule of riparian rights. The natural benefit to the
riparian land of being washed by the stream in this respect (as
well as others) is the foundation of the common-law riparian right.

B. TO SECURE THE BENEFIT OP RELATION.

§ 111. Object of statutory Provisions. — The early customs
out of which the law of appropriation grew were based (as has been
already discussed) on the principle that rights on the public do-
main "were open to all, the first possessor being protected; and
that all, also, should have an equal chance. As is said in Nevada
etc. Co. V. Kidd,*^ they did not countenance anyone acting **the
dog in the manger. " Many attempted to secure monopoly of waters
by merely posting notices or making a pretense at building canals,
ditches, etc., and tried by this means to hold a right to the water
against later comers who bona fide sought to construct the neces-
sary works for its use. From those conditions grew up a method
of making an appropriation to apply specially to rival claimants
while the construction work, often prolonged, was going on. If
the first comer bona fide and diligently prosecuted his work, his

41 Hill V. Standard Min. Co., 12 43 37 Cal. 282, and in Uniwa Min-
Idabo, 223, 85 Pac. 907. ing Co. v. Dangberg, 81 Fed. 73.

42 Van Camp v. Emery, 13 Idaho,
202, 89 Pac. 752.

il 112, 112a HOW AN APPKDPBIATION IS MADE. 189

ri^t QD its eompletHm vdated baek to th« very begiiming of it; ^
otkerwiM the others vera preferred. This method of nuiking the
epproprietion was, uiidar the eazly deeia<MiB, eabetaatiftUy the same
ee that now provided for this porpose, in the Civil Code of Call-
f oimia.^ The proyisioiis of the Civil Code of Calif omie are m&dy
to fix the procedure whereby a certain definite time might be es-
tablished as the date at which title should accrue by rdation.^

•

§ 112. Provuioiis Chiefly Dedantory Only. — ^In codifying
the roles governing this method in California (and the early stat-
utes of other States based thereon), the rules laid down in the
deeisions of the court were not materially changed ; for the whole
code upon this subject is substantially only declaratory of the pre-
existing law.^^

The innovations consist in the following: A notice expressing
certain details in writing is required.^ Before the code, notice was
a requisite, but it did not have to be a written notice,^ nor, con-
seqaently, did it have to express the present required details. Acts
such as would put a man on inquiry — some unequivocal outward
act, such as making a preliminary survey — ^were notice enough.^
It became customary, however, to post a written notice, even before
the code.^^ The other point was where the code specifies that work
must be begun within sixty days after posting a notice,^ whereas
before the code it was a questicm to be decided by the jury whether
the delay was unreasonable, and no number of days was fixed.^
The time for commencing in the absence of statute is any reason-
able time.^

§ 112a. There are four requisites in all that must be complied
with, to secure the benefit of the doctrine of relation under the Cali-

44 Conger v. Wearer, 6'Cal. 648, 49 De Neeochea v. Curtis, 80 Cal.
65 Am. Dec. 528; Nevada eie. Co. v. 397 at 406, 20 Pac. 563, 22 Pae.
Kidd, 37 Cai. 282. 198; Norman v. Corbley, 32 Mont.

45 Qeee. 1410-1422. 195, 79 Pae. 1059.

46 De Neeoehea y. Curtis, 80 Cal. 90 Parke v. Kilham, 8 Cal. 77, 68
997, 20 Pae. 563, 22 Pac. 198; Wells Am. Dec. 310; Kimball v. Gearhart,
T. liaates, 99 Cal. 588, 34 Pae. 824. 12 Cal. 27.

47 De Neeoehea v. Curtis, 80 Cal. si g[ee Weaver v. Eureka ete. Oo.,
807, 20 Pae. 563, 22 Pae. 198; WeUs 15 Cal. 271; and statement of re-
▼. Mantes, 99 Cal. 583, 34 Pac. 324; porter, in Titcomb v. Kirk, 51 Cal.
Pomerojr on Riparian Rights, sec. 96; 288.

Blanchard and Weeks on Mining ^^ Cal. Civ. Code, 1419.

Claims and Water Rights, p. 696; ^ Infra, sec. 124 et seq.

Kinney on Irrigation, sec. 351. M Cruse v. MeCauley (Mont.), 96

48 Cal. Civ. Code, 1415. Fed. 369.

190

THE LAW OF APPBOPBIATION.

i 113

fomia method and the statutes of other States based thereon,
viz. : First, a notice must be posted at the start; second, there must
be an intention to apply the water to a beneficial purpose; third,
the work must be prosecuted with diligence; fourth, it must be
actually completed. We proceed to consider each of these sep-
arately.**

C. NOTICE.

§ 113. Perm of Notice.— In the California Civil Code,* it is
provided that a notice must be posted at the point of intended di-
version, stating the amount and purpose and place and means of
use, and be recorded within ten days. Section 1415 is as follows:

"Notice op Appeopriation. — ^A person desiring to appropriate
water must post a notice, in writing, in a conspicuous place at the
point of intended diversion, stating therein :

**1. That he claims the water there flowing, to the extent of
(giving the number) inches measured under a 4-inch pressure;

**2. The purposes for which he claims it, and the place of in-
tended use ;

**3. The means by which he intends to divert it, and the size of
the flume, ditch, pipe, or aqueduct in which he intends to divert it.
A copy of the notice must, within ten days after it is posted, be
recorded in the office of the recorder of the county in which it is
posted.

** After filing such copy for record, the place of intended diver-
sion or the place of intended use or the means by which it is

SB In Oregon the requisites are
summed up: "The rule is settled in
this state that to constitute a valid
appropriation of water there must be
(1) an intent to apply it to some
beneficial use, existing at the time
or eontemplated in the future; (2) a
diversion thereof from' a natural
stream; and (3) an application of it
within a reasonable time to some
useful industry." Beers v. Sharpe,
44 Or. 386, 75 Pac. 717, citing Sim-
mons y. Winters, 21 Or. 35, 28 Am.
St. Rep. 727, 27 Pac. 7; Hindman v.
Bizor, 21 Or. 112, 27 Pac. 13; Low
V. Bizor, 25 Or. 551, 37 Pac. 82;
Nevada etc. Co. v. Bennett, 30 Or.
59, 60 Am. St. Rep. 777, 45 Pac.
472. Another summing up of the

rules is as follows: "It seems the
settled law in the States where irri-
gation problems have been dealt with
that, in order to acquire a vested right
in the use of water for such purposes
from the public streams, three things
must concur: There must be the con-
struction of ditches or channels for
carrying the water; the water must
be diverted into the artificial chan-
nels, and carried through them to the
place to be used; and it must be
actually applied to beneficial uses, and
he has the best right who is first
in time." Qates v. Settlers Go.
(Okla.), 91 Pac. 856.

As to actual application to use as
an element, see infra, sec. 137.

56 Sections 1415, 1421.

§114

HOW AN APPROPRIATION IS MADE.

191

intended to divert the water, may be changed by the person posting
said notice or his assigns if others are not injured by such change.
This provision applies to notices already filed as well as to notices
hereafter filed. " **^

Under the act of Congress of March 3, 1891, and acts supplemen-
tary thereto filings for rights of way for ditches and canals over
public lands and reservations may be also made in the Federal land
office, though this is not obligatory,^ and is only done for the sake
of the additional record, and also to secure additional privileges
granted by the acts in question.'^

§ 114. Contents and Recording of Notice. — What constitutes
an inch of water varies in different localities.^

The statement of a definite pl&ce of use is sufiicient as to that
place, though joined with an indefinite statement of intent to sell
water to others for use on land not specified,^^ and a statement that
the means used shall be ''by a six-inch pipe or by a pipe of other
dimensions" is sufScient to cover a diversion of so much as a six-
inch pipe would carry, within the number of inches stated in the
notice.** Where identical notices are posted for different diver-
sions, on!y one copy needs to be recorded..^

The notice is not •* expressly required by statute to be verified,
and acknowledgment has been held unnecessary, and is omitted in
practice.*^ It has recently been held that the notice of appropria-
tion need not be acknowledged before recording it or at all.* The
notice of appropriation is in this respect similar to location notices

67 En. March 21, 1872 ; Amd. 1903,
361. A form of notice under this
section that has been upheld b7 de-
eunon is ffiven in the part of this
book containing forms.

ss See Federal Statutes in Part YI,
Act of March 3, 1891, with com-
ments thereon.

» Infra, sec. 149a.

60 See itifra, sec. 175. The statute
of 1901, page 600, in California re-
qnires measurement, in eifect, under
a six-inch pressure. Quoted infra,
sees. 175, 176. Civ. Code, 1415, su-
pra, sajs four-inch pressure.

91 Duckworth v. WatsonviUe etc.
Co., 150 Cal. 520, 89 Pac. 338.

62 Ihid. As to contents of the no-
tice, see, further, Floyd v. Boulder etc.
Co., 11 Mont. 435, 28 Pac. 450.

63 Wolfskin V. Smith, 5 Cal. App.,
, 89 Pac. 1001.

w Under Cal. Civ. Code, sec. 1415.

65 Another section (Cal. Civ. Code,
1161) requiring acknowledgment of
all documents offered for record has
no application. Whether this applied
to a notice of appropriation was
raised in the briefs of Mr. Hall Mc-
Allister in Lux V. Haggin, but was
not touched upon in the decision, be-
cause the appropriation was held in-
valid on more substantial grounds.

68 Wolfskin V. Smith, 5 Cal. App.
, 89 Pac. 1001.

192

THB ^AW OF APPBOPiCIATION.

i§ 115,116

of miBiog claims, which, lU^o, do not require a(^owledgmeat be-
fore recording.*^

The notiee mfty be poBted in a forest reserve, if the acts of Con-
gress concerning appropriations in forest reserves are also complied
with.*® .

§ llfi. Pwrpoie of the lfotiee« — The notice is chiefly to iOx the
date at which the appropriator's title, on completion, shall aecroe
by relation,^ or, as it is said, the right on completion relates back
to the posting of the notice.'^ All comers who date thdr elaim later
than that must relinquish their claim so far as inconsistent there-
with, whether the later comer is himself an appropriator,'^^ or an
occupant claiming riparian rightsJ^ The other purpose of the no-
tice is to set a limit upon the extent of the water right claimed,^
and to preserve evidence thereof by having it recordedJ^

How far an appropriator is bound by the declaration in his no-
tice as to amount, purpose, means or place of use will be a matter
for consideration later. It may be said here that the appropria-
tor is not bound by his notice to a preliminary base line for ditches
or flumes, but may later, in the course of construction, within a
reasonable time, change bis surveyed line, as necessity points out,
without having to start and post a notice all over again."^^ The
notice is to be liberally construed.^*

§ 116.' nie Hotioe Operates as a Warning. — ^The notice does
not withdraw the water then and there from use by others entirely
as a notice of discovery withdraws mining ground, but it warns
others that later on, when you have completed your works, you
will have the right to so much water. It has been held that, in the
meantime, anyone else can temporarily use the water, and you will
have no action against him unless he interferes with your c<Mi8truc-

67 Cal. Civ. Code, sec. 1159.

68 32 Land Dee. 145.

60 Wells V. Mantes, 99 Cal. 583, 34
Pae. 3^4.

70 Cal. Civ. Code, 1418; KimbaU
V. Gearhart, 12 Cal. 27; Nevada etc.
Co. V. Kidd, 37 Cal. 282; Well* v.
Mantes, 99 Cal. 583, 34 Pac. 324.

71 Cal. av. Code, 1418, 1414, and
cases supra,

72 De Necochea v. Curtis, 80 Cal.

897, 20 Pae. 563, 22 Pae. 198;
Broder v. Natoma Water Co., 101 U.
8. 274, 25 L. ed. 790; Nevada etc.
Co. V. Kidd, 37 CaL 288.

73 Infra, see. 166.

74 Murray v. Tinglej, S^ Hont
260, 50 Pac. 724.

75 Cal. giv. Code, 1415; Conger v.
Weaver, 6 Cal. 548, 65 Am. Dee. 528.

76 Oupood V. £1 Dorado eta. Co.,
56 Cal. 571.

§ 116 HOW AN APPROPRIATION IS MADE. . 193

tion work or continues to use the water after you have actually
completed your works. Until that time you have no action against
him for diverting the water.*" In Nevada Water Co. v. Kidd/*
the court says : ' * In view of this principle, suppose by way of illus-
tration that the plaintiff has located its site for a dam and canal
and claimed the waters of the South Yuba River and commenced
the construction of the dam and canal, but in consequence of the
magnitude of the work, was unable for several years to divert or
use the water, and in the meantime the defendants, being men of
greater pecuniary ability, should consequently locate another claim
above or near the plaintiff's and a canal running parallel with the
plaintiff's and be in a condition to divert and use the water in half
the time; their acts, provided there was no interference with
plaintiff's site and location, or obstruction to the prosecution of
its work, would be no injury to plaintiff or cause of action in its
favor. The plaintiff in such case has, as yet, no right to the water
so far perfected that a diversion or use by other parties is any in-
terference or injury. But if the plaintiff's work should be prose-
cuted with diligence and completed, so as to entitle it to divert
aud use the waters, its right to the waters thenceforth would date
by relation from the commencement of the work, and, should de-
fendants thereafter continue to divert the waters and deprive the
plaintiff of their use, an injury to their water rights then vested
and perfected would result, and a right of action for the injury
to such right accrue." The case so held and has been quoted and
affirmed on this point.™ In the latter case just cited this prin-
ciple was afBrmed by the Federal court, the court saying: **It is
obvious that a person who intends to become an appropriator un-
der these sectiona cannot acquire the exclusive right to the use of
the water he intends appropriating, nor maintain any suit, either
at law or in equity for its diversion, until all the steps requisite to
an appropriation have been made." In Montana,*^ affirming .the
same point, the cohrt says that the appropriator need take no notice
of intervening clilimants who make temporary appropriations in the
meantime.

" Ante, see. 49. heim etc. Co., C. C. S. Dist Gal., 115

78 37 CaL 282. Ped. 543.

^ Salt Lake City v. Salt Lake etc. 80 Woolman v. Garringer, 1 Mont.

Co., 24 Utah, 249, 67 Pae. 672, 61 535. See, also, Miles v. Butte etc.

L. R. A. 648; Bincon etc. Co. v. Ana- Co., 32 Mont. 56, 79 Pac. 549. .
Water Bights — 18

194

THE LAW OF APPROPRIATION.

S 117

During the prosecution of the construction work the right does
exist to use so much of the water as is necessary in the construc-
tion work, to keep the ditch or flume, etc., in repair,^ but that is all
For all purposes except to make the temporary use of the water
by others actionable, however, the right to the use of water on oom-
pletion relates back to the posting of the notice, if the work has
been prosecuted diligently, and dates from the i>osting of the no-
tice as against those who come later.^

§ 117. Failure to Post Notice.— The failure to post a notice,
or the posting of a faulty notice,^ constitutes a waiver of all ad-
vantages that such a warning gives. As seen above, it is not fatal
if the work is nevertheless completed before others intervene, and
the appropriator may claim as an appropriator by actual diver-
sion.®* As against interveners, however, the failure is f ataL*^ Be-
ginning a ditch without posting notice gives no right against an-
other who does post notice before the completion of the farmer
ditch, and works diligently to his own completion.^ As be-
tween rival claimants, neither of whom has posted a no-
tice, probably the result will be the same, giving the better
right to the first who actually diverts and uses the water.^
It may be, however, that they will be on the same footing as rivals
before the code (when written notice was not needed),^ on th^
ground that the code provisions were enacted for their benefit, and
they, refusing to take advantage of them, waived them. In this
view, the better right would, by relation, be in him who began first
in a way that gave notice from his acts, provided he prosecuted the
work with diligence.®^ The view of the code taken in De Necochea
V. Curtis and Wells v. Mantes,^ however, would lead one to think
that no claim to the benefit of the doctrine of relation can be made
whatsoever, unless the code provisions are strictly complied with.*'

81 Weaver v. Conger, 10 Cal. 233.

82 CaL Civ. Code, 1414, 1418;
Maoris V. BrickneU, 7 Cal. 261, 68
Am. Bee. 257; Nevada ete. Co. v.
Kidd, 37 CaL 282: Wells v. Mantes,
99 Cal. 583, 34 Pae. 324.

83 Taylor v. Abbott, 103 CaL 421.

84 Wells V. Mantes, 99 CaL 583,
34 Pae. 324.

8B Ibid., and WolfskiU v. Smith, 5
Cal. App. 175, 89 Pae. 1001.

«6 Jhi(f.

87 Compare Co^doza v. Calkina, 117
CaL 106, 48 Pae. 1010.

88 Ante, sec. 112.

80 See 60 Am. St. Bep. 801, note;
as, for eiample, in Maeris ▼. Bziek-
nell, 7 CaL 261, 68 Am. Dee. 257, and
Kimball v. Gerhardt, 12 OiL 27.

«o Supra.

01 Snch was the result in tbe ease
of Murray v. Tingley, 20 Mont 260,
50 Pae. 724.

§§ 118, 119

HOW AN APPROPRIATION IS MADE.

195

§ 118. Notice Alone not Enough. — It ne^d hardly be said that
merely posting a notice is not enough unless the other requisites of
a bona fide intent, diligence and completion, are also complied with.^^
It is well settled that the posting of a notice gives no rights if the
other requisites are not complied with.*^

D. BENKFICIAL PURPOSE.

§ 119. Neceiudty for Bona Fide Intention. — There must be an
intention to use the water for a beneficial purpose. This was a
requisite from the earliest days, for all appropriations, however
made.^ In one ease it is said: ''He did not appropriate in a legal
sense any water except such as he used beneficially — turning more
water from a stream than he used was waste, not appropriation. ' ' .^
In another: "The intention of the claimant is therefore a most im-
portant factor in determining the validity of an ^propriation of

92 Thompson v. Lee, 8 Cal. 275 ;
GordoA Y. Calkins, 117 Cal. 106, 48
P&e. 1010, and eases passim.

98 '<The right to the water does
not exist when the notice is given
and it may never vest. The most
that is in esse is a right to aeqnire,
by reasonable diligence, a future right
to the water." MiteheU y. Canal
Co., 75 Cal. 482, 483, 17 Pac. 246.

''The amount elaimed in the notiee
is no measure of the right." Duck-
worth V. Watsonvme etc. Co., 150 Cal.
520, 89 Pac. 338.

"Appropriation is a much-abused
word. It is often loosely spoken of as
the preliminary step-Hsuch as filing
a notice, maldng a claim to the wa-
t^ or the like — ^but in its legal sig-
nifleanee it embodies not 0^7 the
claim to the water, but the consum-
mation of that claim by actual use."
Morris y. Bean (Mont.), 146 Fed.
425.

"The notice of Laird's claim was

of no YBlidity A declaration of

a claim to water, unaccompanied by
acts of possession, is whoUy inopera-
tive as against those who slutU l^^y
proeeed to acquire a right to the
nme.>' Columbia Mng. y. Holter, 1
Mont. 296.

''My intention was that, knowing
that a good location was wanted for
a smelter-site, to hold it for that
purpose." HaYing from 1889 to 1902
taken no steps beyond posting a no-
tice, a non-suit was granted against
him in a suit by him against one
who in the meantime had diYcrted and
used the water. Miles y. Butte etc.
Co^ 32 Mont. 56, 79 Pac. 549.

That notice alone is not enough is
also held in WeaYcr y. Eureka Lake
Co., 15 Cal. 271; NcYada etc., Co. y.
Kidd, 37 Cal. 282; MitcheU y. Ama-
dor etc. Co., 75 CaL 464, 17 Pac.
246; Smyth y. Neal, 31 Or. 105, 49
Pac. 850; Wolf skill y. Smith, 5 Cal.
App. 175, 89 Pac. 1001; Kendall y.
Joyce (Wash.), 93 Pac 1091.

M See Pomeroy on Biparian Bights,
sec. 47. Citing Dick y. Cfildwell, 14
NoY. 167; Dick y. Bird, 14 Ncy. 161;
Crane y. Winsor, 2 Utah, 248 ; Munroe
Y. lYie, 2 Utah, 535; Woolman y.
Garringer, 1 Mont. 535; Cal. CiY.
Code, sec. 1411. See, also, North
Am. Co. Y. Adams (Colo.), 104 Fed.
404, 45 C. C. A. 185; NcYada D.
Co. Y.- Bennett, 30 Or. 59, 60 Am. St
Bep. 777, 45 Pac. 472.

95 Dick Y. Caldwell, 14 Nev. 167.

196

THE LAW OF APPROPRIATION.

5 120

water. ''®^ ,The intention must be bona fide and not for specula-
tion, such as an intention to store water for monopoly,*^ or for ir-
rigation when one has no lands to be irrigated.^

§ 120. What Oonstitates a BeMflcial Purpose. — What consti-
tutes a beneficial purpose will best be seen from exiunples.

A passive acceptance of water as it flows into one's ditch when
another appropriator does not wish to use it is not an appropria-
tion if not taken into the ditch with any intent to a use at all.*

A ditch for drainage does not appropriate the water in it
because of the absence of intent to use the water.^*^ Where water
draining from a tunnel finds its way to a stream, the tunnel owner
cannot claim as an appropriator the right to reclaim the water
from another part of the stream.*®^ Where water drains from an
abandoned well drilled for oil, the driller of the well is not an ap-
propriator of the water, from lack of intent to use the water at the
time the well was abandoned.^®^ But the drainage may be only
incidental to a beneficial use, or there may be a dual intent.
''There was sonie testimony indicating a dual intent on the part of
Duncan — ^that is, a purpose not only to get water to irrigate his
landj as stated, but also to draw off the flood water from, and pre-
vent it flowing to, some other land owned by him on which he then
had growing a crop of grain. This purpose to drain one tract of
land did not vitiate or destroy the right to take the water for ir-
rigation of other tracts, nor impair the right, acquired by such ap-
propriation and use, to take and use it for the latter purpose. The
two purposes are not inconsistent. ' * ^*®

When making no application of water, quaere whether flowing it
through a ditch to flush it and keep it open is beneficial use.^^

06 Power Y. Switzer, 21 Mont. 523,
55 Pae. 32.

»T Weaver v. Eureka Co., 15 Cal.
271.

98 Miles V. Butte etc. Co., 32 Mont.
56, 79 Pac. 549.

99 Smith Co. V, Colorado etc. Co.,
34 Colo. 485, 82 Pftc. 940, 3 L. B.
A., N. 8., 1148.

100 Eddy v. Simpson, 3 Cal. 249, 58
Am. Dec. 408; Maoris v. Bicknell, 7
<.'al. 261, 68 Am. Dec. 257.

toi Farmers' etc. Co. t. Bio Grande
etc. Co., 37 Colo. App. 512, 86 Pac.
1042 ; infra, sees. 233, 234, Beeapture.

102 Wolf^U V. Smith. 5 Cal. App.
175, 89 Pac. 101.

los Lower Tule etc. Co. v. Angiola
etc. Co., 149 Cal. 496, 86 Pac. 1081.

104 M»nn V. Parker (Or.), 86 Pac.
598. Cf. Weaver v. Conger, 10 Cal.
233.

I 120

HOW AN APPROPBIATION IS MADE.

197

Irrigation is a useful purpose, and water may, of course, be ap-
propriated for irrigation.**^ What is contemplated by the term
** irrigation" appears from the following: Water increasing the
growth of grass for pasture is a beneficial purpose if turned on the
land with that intent ; *^ but otherwise where the increase in growth
of hay was merely incidental, and irrigation had not been in-
tended,**" or where there was but a purposeless flooding of land.***
Cutting wild grass produced by the overflow of a river, that is by
the water of a river coming down and spreading over the land, is not
an- appropriation of that water within the meaning of that term.**^

The following is an extreme case: ^'The ground assumed is that
the diversion of water for the mere temporary purpose of strand-
ing fish is not converting it to a useful or profitable purpose, and
therefore the party thus diverting it acquires no rights. Had the
water been diverted by the Indians for the mere purpose of catch-
ing fish upon one occasion, this position might have been right.
But, as I understand the testimony, it was a permanent diversion
of the water, so as to run it over flat meadows, thus enabling the
Indians at any time .to catch fish among the grass of the meadow-
land, which they could not catch whilst the waters were confined
in a narrow channel. I cannot see but that it is just as legitimate
for an Indian to turn water over meadow-land to enable him to
eatch fish for his subsistence as for a white man to turn it over the
same land to increase the growth of grass. "***^

i<» Basej V. Gallagher, 87 U. S.
670, 22 L. ed. 452; Rupley v. Welch,
23 Cal. 453 (approved in Natoma
etc. V. Hancock, 101 Cal. 42, 31 Pac*
112, 35 Pac. 334); Cave v. Crafts,
53 C&l. 135; Anaheim etc. v. Semi-
Tropic &)., 64 Cal. 185, 30 Pac. 623;
Lu V. Haggin, 69 Cal. 255, 10 Pac.
674; Yunker v. Nichols, 1 Colo. 551;
Schilling v. Bominger, 4 Colo. 100;
Sieber v. Frank, 7 Colo. 148, 2 Pac.
901; Larimer Co. Res. Co. v. People,
8 Colo. 614, 9 Pac. 794 ; Platte Water
Co. V. Northern Colo. Irr. Co., 12
Colo. 525, 21 Pac. 711; Farmers'
etc. Co. V. Southworth, 13 Colo. Ill,
21 Pac. 1028, 4 L. K. A. 767; Geert-
son ▼. Barrack, 3 Idaho, 344, 29 Pac.
42; Kirk v. Bartholomew, 3 Idaho,
367. 29 Pac. 40; Pyke v. Bumside,
8 Idaho, 487, 69 Pac. 477; Thorp
r. Freed, 1 Mont. 651; Murray v.
Tingley, 20 Mont. 260, 50 Pac. 723;

Sajre v. Johnson, 33 Mont. 15, 81
Pac. 389; Barnes v. Sabron, 10 Nev.
231; Dick v. Bird, 14 Nev. 161; Dick
V. Caldwell, 14 Nev. 167; Nevada etc.
Co. V. Bennett, 30 Or. 59, 60 Am.
St. Rep. 777, 45 Pac. 472; Brown
V. Baker, 39 Or. 66, 65 Pac. 799, 66
Pac. 193; Lone Tree Co. v. Rapid
City Co., 16 8. Dak. 451, 93 N. W.
650; Crane v. Winsor, 2 Utah, 248;
Munroe v. Ivie, 2 Utah, 535.

106 Sayre v. Johnson, 33 Mont. 15,
81 Pac. 389. Or the growth of hay.
Pyke V. Bumside, 8 Idaho, 487, 69
Pac. 477.

107 Power V. Switzer, 21 Mont. 523,
55 Pac. 32.

108 Millheiser v. Long, 10 N. Mex.
99, 61 Pac. 111.

100 Walsh V. Wallace, 26 Nev. 299,
99 Am. St. Rep. 692, 67 Pac. 914.
110 Lobdell v. HaU, 3 Nev. 507.

198

THE LAW OF APPBOPRIATION.

5 121

Storage as an aid to irrijjfation or other use (as opposed to specu-
lation) is a useful purpose, and water may be appropriated for stor-
age."' Articles of incorporation to divert water do not include
building of reservoirs to store it."- Mining and power are useful
purposes for which appropriation may be made."^ Sale or pub-
lie supply likewise."* The original case of Irwin v. Phillips"'
was such a case. But mere speculation is not allowed; e. g., a
reservoir built to hold water indefinitely, without any definite use
in mind,"® or for monopoly."^

That all pursuits are on an equal footing, whether miners, ag-
riculturists, manufacturers, or other occupations, is a matter pre-
viously set forth. The following passage from Basey v. Gal-
lagher"® is frequently quoted: ** Water ij diverted to propel ma-
chinery in fiourmills, and sawmills, and to irrigate land for cul-
tivation, as well as to enable miners to work their mining claims,
and in all such cases the right of the first appropriator, exercised
within reasonable limits, is respected and enforced." An appro-
priation may be made for any beneficial purpose.*^®

§ 121. Motive. — Malice and ill-will toward another do not en-
ter into the question.^^ It is usually said that an act otherwise
lawful does not become unlawful merely th.rough a malicious mo-
tive to injure another, though this wide statement is open to ques-
tion. The question is more or less an open one, however, under the

111 Water Supply Co. v. Larimer
Irr. C6., 24 Colo. 322, 51 Pac. 496,
46 L. B. A. 322; Cache La Poudre
Co. V. Windsor Co., 25 Colb. 53, 52
Pac. 1104.

112 Seelej v. Hunting etc. Assn.,
27 Utah, 179, 76 Pac. 367.

113 Irwin V. Phillips, 5 Cal. 140, 63
Am. Dec. 113; McDonald v. Bear
River Co., 13 Cal. 220, 15 Cal. 145;
Platte Water Co. v. Northern Colo.
Irr. Co., 12 Colo. 525, 21 Pac. 711;
Woolman v. Garringer, 1 Mont. 535.

114 Wilterding v. Green, 4 Idaho,
773, 45 Pac. 134; Albuquerque etc.
Co. V. Guitterez, 10 N. Mex. 177, 61
Pac. 357; Gutierres v. Albuquerque
etc. Co., 188 U. S. 545, 47 L. ed.
588, 23 Sup. Ct. Rep. 338; Salt Lake
City V. Salt Lake etc. Co., 24 Utah,
249, 67 Pac. 672, 61 L. R. A. 648;
Platte Water Co. v. Northern Colo.
Irr. Co., 12 Colo. 525, 21 Pac. 711;

Lone Tree D. Co. V. Rapid City etc.
Co., 16 S. Dak. 451, 93 N. W. 650;
Strickler v. Colorado Springs, 16 Colo.
61, 25 Am. St. Rep. 245, 26 Pac.
313 ; Yuba Co. v. Cloke, 79 Gal. 239,
;21 Pac. 740; Senior v. Andereon,
130 Cal. 290, at 297, 62 Pac. 563;
Souther v. San Diego etc., 112 Fed.
228; Cal. Const., art. 14, seel. See
note in 60 Am. St. Rep. 804, 816.

115 5 Cal. 140, 63 Am. Dec. 113.

116 Weaver v. Eureka etc. Co., 1-5
Cal. 271.

iiT Revenue etc. Co. v. Balder-
stone, 2 Alaska, 363.

118 87 U. S. 670, 22 L. ed. 452
(per Justice Stephen Field).

118 Silver Peak Mines v. Valcalda,
79 Fed. 886.

120 Correa v. Frietas, 42 Cal. 339;
Stone V. Bumpus, 46 Cal. 218; Fisher
v. Feige, 137 Cal. 39, 92 Am. St.
Rep. 77, 69 Pac. 618, 59 L. R. A. 333.

ii 122-124

HOW AN APPROPRIATION IS MADE.

199

new deeisioDs concerning underground water and in that connec-
tion will be discussed later.

§ 122. Evidence of Intention. — ^How is the intention shown f
First, of course, from the notice ; but it may be drawn also from the
appropriator's acts, the manner in which they work, the general
size of the ditch, etc.*^^ They aid in interpreting the notice. * * But
as every appropriation must be for a beneficial or useful purpose,
it becomes the duty of the courts to try the question of the claim-
ant's intent by his acts, and the circumstances surrounding his
possession of the water, its actual or contemplated use, and the pur-
pose thereof. "^^

Where the appropriation is by actual diversion without notice,
such evidence of surrounding circumstances is the sole evidence of
the intent that is possible.^^

§ 123. Intention Alone not Enough. — ^It need hardly be re-
peated that the intent alone, by itself, is not enough; the other
requisites we are considering must also be complied with.*^ A de-
sign two years before to appropriate a certain creek as a connect-
ing link in a long canal was held ^^ not to prevent another man
from coming in the meantime and building a dam. In extensive
operations of this kind, involving several streams, each, it appears,
must be separately appropriated. The same has been held of the
intention to build a reservoir in a river bed.*^

E. DILIGENCE.

§ 124. Necessity for Diligence. — ^There must be diligence in
prosecuting the construction work. This was a requisite from the
earliest days for all appropriators claiming the benefit of the doc-

121 White V. Todd 'b etc. Co., 8 Ckl.
443, 68 Am. Dec. 338.

i« Toobej V. Campbell, 24 Mont.
13. 60 Pac 396.

128 '<8aeh intention, nnless estab-
limbed hy notice, or in some other pub-
lic manner, could in no way be known
to OT control others wishing to take
water from the same stream, and
nieh intention could only be inferred
^ deduced, first, from the capacity
of the ditch at its head, and perhap".

second, the amount of irrigable land
of the ditch proprietors upon which
it could reasonably be supposed that
they intended to apply it." Taugh-
enbaugh v. Clark, 6 Colo. App. 235,
40 Pac. 153.

124 Ortman v. Dixon, 13 Cal. 33.

128 Kelly V. Natoma etc. Co., 6 Cal.
105.

128 New Loveland etc. Co. v. Con-
solidated etc. Co., 27 • Colo. 526, 62
Pac. 366, 52 L. K. A. 266.

200

THE LAW OF APPROPRIATION.

§ 135

trine of relation, and remains to the present day wherever the law
of appropriation is in f orce.*^

§ 126. What Oonstitates Diligence.— The California code has
specified that the work must commence within sixty days after post-
ing of notice, and must continue thence diligently and uninter-
ruptedly unless prevented by rain or snow.*^

Upon the point of delay because of pecuniary inability the de-
cisions seem to conflict. In California,*^ Nevada **^ and Oregon "^
lack of funds will not excuse delay; but it seems otherwise in
Colorado *^ and Idaho.^^ In these latter cases the courts lay stress
upon the fact that the public lands have usually been taken up by
poor men. In the Colorado case it is said: ''Men of limited means,
pioneers in a new territory, who have not only to 'grub' and clear
land, 'but erect houses and provide means of living while making
a home, should not be held to the same rule with those more favored
and having abundant capital. As long as the settler in the desert
does not abandon, but continues in good faith to prosecute his con-
struction of a ditch and the application of water to his land as
rapidly as his means will permit, he should be held to be within
the limit. of *a reasonable time.' "

Interruptions by sickness are not an excuse for delay.^**

If a ditch breaks before the water reaches the land intended to
be irrigated by it, the delay is not necessarily lack of diligence ; it
is open to explanation.*^ The fact that another began later than

127 Cal. Civ. C!ode, sec. 1416, and
cases herein cited below. Also High-
land D. Co. V. Mumf ord, 5 Colo. 325 ;
Sieber v. Frink, 7 Colo. 148, 2 Pac.
901;-:F^rmer8' Highline C. & Res.
Co. V. Southworth, .13 Colo.* Ill, 21
Pac. 1028, 4 L. R. A. 767; Colo.
Land & W. Co. v. Rocky Ford C.
R. L. L. & T. Co., 3 Colo. App. 545,
34 Pac. 580; Beaver Brook Res. & C.
Co. V. St. Vrain Res. & Fish Co., 6
Colo. App. 130, 40 Pac. 1066; Taugh-
enbaugh v. Clark, 6 Colo. App. 235,
40 Pac. 153; 3 M. A. S., 1905 ed.,
2265f ; Gates v. Settlers Co. (Okla.),
91 Pac. 856.

128 Civ. Code, sec. 1416.

129 Nevada etc. Co. v. Kidd, 37 Cal.
282 ; Kimball v. Gearhart, 12 Gal. 27 .

180 Ophir etc. Co. v. Carpenter, 4
Nev. 534, 97 Am. Dec. 550.

131 Cole V. Logan, 24 Or. 304. 33
Pac. 568.

132 Taughenbaugh v. Clark, 6 Colo.
App. 235, 40 Pac. 153.

133 Hall V. Blackman, 8 Idaho, 272,
68 Pac. 19; Conant v. Jones, 3
Idaho, 606. 32 Pac. 250.

134 Kimball v, Gearhart. 12 Cal.
27; Nevada etc. Co. v. Kidd, 37 Cal.
282; Mitchell v. Amador Canal etc.
Co., 75 Cal. 464, 17 Pac. 246.

185 Wells V. Kreyenhagen, 117 Cal.
329, 49 Pac. 128.

§ 125 HOW AN APPROPRIATION IS MADE. 201

you and finished sooner is evidence of lack of diligence on your
part,*** but is not conclusive-.**^

What constitutes diligence must be determined on the facts of each
case. It is a question of fact for the jury.*^ In Ejmball v. Gear-
hart, *^ the court says that the following statements, among others,
are an accurate statement of the law : ' ' In appropriating unclaimed
water on public lands only such acts are necessary, and only such in-
dications and evidences of appropriation are required as the nature
df the case and the face of the country will admit of and are un-
der the circumstances and at the time practicable; and surveys,
notice, stakes and blazing of trees, followed by work and actual
labor without any abandonment, will in every case where the worfc
is completed, give title to water over subsequent claimants." **In
determining the question of the plaintiff's diligence in the con-
struction of their ditch, the jury have a right to take into consider-
ation the circumstances surrounding them at the date of their al-
leged appropriation, such as the nature and climate of the country
traversed by said ditch, together with all the difficulties of procur-
ing labor and materials necessary in such cases.''

Diligence does not require unusual or extraordinary efforts, but
only such constancy and steadiness of purpose or of labor as is
usual with men engaged in like enterprises. Matters incident to
the person and not to the enterprise are not such circumstances as
will excuse great delay in the work.*^ In one case, for two years
work was done on the ditch for three months only, and the court
said: ''Diligence is defined to be the 'steady application to business
of any kind, constant effort to accomplish any undertaking. ' The
law does not require any unusual or extraordinary effort, but only
that which is usual, ordinary, * and reasonable. The diligence re-
quired in cases of this kind is that constancy and steadiness of pur-
pose or labor which is usual with men engaged in like enterprises,
and who desire a speedy accomplishment of their designs. Such

136 Nevada etc. Co. ▼. Kidd, 37 each particular case. It is a question

('al. 282. of fact, and must be determined from

la? De Neeoehea v. Curtis, 80 Cal. all the evidence in the case. * ' Gates

397, 20 Pac. 563, 22 Pac. 198; WeUs v. Settlors' etc. Co. (Okla.), 91 Pac.

^. Kreyenhagen, 117 Cal. 329, 49 Pac. 856.-

128. 130 12 Cal. 27.

138 Weaver v. Eureka etc. Co., 15 140 Ophir etc. Co. v. Carpenter, 4

^l. 271. *'Ab to what constitutes Nev. 534, 97 Am. Dee. 550. See, also,

Y^easonable diligence must be governed Oviatt v. Big Four etc. Co., 39 Or.

by the circumstances of each particu- 118, 65 Pac. 811.
^T ease, and necessarily varies with

202

THE LAW OP APPEOPBTATION.

8 126

assiduity in the prosecution of the enterprise as will manifest to
the world a b<yna fide intention to complete it within a reasonable
time. It is the doing of an act, or series of acts, with all practical
expedition, with no delay, except such as may be incident to the

work Rose during this time may have dreamed of his canal

completed, seen it with his mind's eye yielding him a great revenue;
he may have indulged the hope of providential interference in his
favor, but this caimot be called a diligent prosecution of his enter"
prise. ''!«

On the facts involved, there was held to be diligence in the con"
struction work in the following cases : Where the time elapsed was
from December to February, during which a survey (but nothing
more) had been made.*** Where three ytors had been consumed
by a colonization company not desiring to complete the work before
securing settlers.^*^ Where one year elapsed.***

On the other hand, it was held not diligence where two years and
six months had elapsed with little done on the facts presented,'^
and a sale was held to pass nothing.**®

Concerning diligence in applying the water to use after com-
pleting construction work, reference is made to a later chapter.^^

§ 126. Delay During Legal Proceedings. — ^The California legis-
lature in 1907 **'^ enacted **^ in a somewhat ambiguous amendment
to the code that if the proposed appropriation will conflict with
existing rights, the appropriator must within sixty days after post-
ing notice, bring suit to have those rights settled, or to condemn
them under the power of eminent domain, and that he shall have
sixty days after final judgment in which to proceed with the con-
struction work. A somewhat similar provision appears in the
Montana act of the same year.**® This new California provision
is probably intended to favor new appropriatons in case of delay

141 Ophir etc. Co. v. Carpenter, 4
Nev. 534, 97 Am. Dec. 550.

142 Dyke v. Caldwell, 2 Ariz. 394,
18 Pac. 276.

143 Nevada etc. Co. v. Bennett, 30
Or. 59, 60 Am. St. Rep. 777, 45 Pa?.
472.

144 Oviatt V. Big Pour Co., 39 Or.
118, 65 Pac. 811. See, alao^ Gates v.
Settlers' etc. Co. (Okla.), 91 Pac. 856.

146 Colorado etc. Co. v. Bocky

Ford etc. Co., 3 Colo. App. 545, 34
Pac. 580.

146 See, also, infra, sec. 171, Future
^feeds

146." Infra, sees. 171-173.

147 See Statutes in a later part of
this book.

148 Civ. Code, 1416, as amd. in
Stats. 1907, c. 429.

149 See Statutes in a later part of
this book. Stats. 1907, c. 185, p. 489.

S$ 127, 128

HOW AN APPROPRIATION IS MADE.

203

due to litigation ; but it will probably hinder them by forcing? such
litigation upon them whenever a possible conflict appears. The
Montana act seems aimed expressly at the latter result, rather than
the former; that is, to favor existing owners by making new ap-
propriations more difficult, rather than to favor new appropriators
by an extension of time.

§ 127. Failure to Use Diligence. — The failure to use diligence
is like the failure to post notice, ^nd deprives the claimant of the
benefit of the doctrine of relation. It is not fatal if the work is
nevertheless completed before others intervene, and the former may
claim as an appropriator by actual diversion.^^ Against inter-
veners, however, it is fatal.^*^* As between rival claimants neither
of whom is diligent, probably the result will be the same as dis-
cussed under the matter of notice and both will be deprived of any
benefit of the doctrine of relation, not having complied with the
code, such being the principle on which De Necochea v . Curtis **^
and Wells v. Mantes *** were decided. It may, however, be that
they will be on the same footing as rivals before the code, where the
better right existed in the one who was last diligent; that is, the
right would relate back to the time when (if any) a new start was
first made, and the work thereafter diligently carried on.^'^

y. COMPLETION OP CONSTRUCTION WORK.

§ 128. Completion of Work Preparatory to Use of Water was
a requisite from the earliest days.^" ** However, he never com-
pleted his ditch, but abandoned it, and it remained unused for sev-
eral years. No water rights ever became vested in him on ac-
count thereof." ^^ There is no appropriation without the comple-

160 Wells V. Mantes, 99 Cal. 583,
34 Pac. 324.

»i Nerada etc. Co. v. Kidd, 37 Cal.
282; WeDa v. Mantes, 99 Cal. 583, 34
Pie. 324; Cal. av. Code, 1419; Cruse
V. MeCaulej, 96 Fed. 369; Bear Lake
etc. Co. V. Garland, 164 U. 8. 1, 41
L. ed. 327, 17 Sup. Ct. Rep. 7; New
Loveland etc, Co. v. Consolidated etc.
Co., 27 Colo. 525, 62 Pac. 366, 52 L.
R. A. 266; Colorado etc. Co. v. Rocky
Pord etc. Co., 3 Colo. App. 545, 34

Pac. 580; Cole v. Logan, 24 Or. 304,
33 Pac. 568; Kenney v. Carillo, 2 N.
Mex. 493.

152 80 Cal. 397, 20 Pac. 563, 22
Pac. 198.

168 99 Cal. 583, 34 Pac. 324.

iM See 60 Am. St. Rep. 801, note.

1M Kimball v. Gearhart, 12 Cal. 50.
Now required by sec. 1416, Cal. Civ.
Code.

i5« Watts V. Spencer (Dr.), 94 Pac.
39.

204 THE LAW OP APPROPRIATION. H 129-131

tion of the actual labor necessary to take the water into posseasion.^^^
As we have seen, the completion of the preparatory work, followed
by actual diversion for a beneficial purpose, was alone enough
where the doctrine of relation was not involved; the requisites of
notice and diligence being merely supplementary to this, the prime
factor, in order to apply the doctrine of relation between rival
claimants.

§ 129. What Constitutes Oompletion.— The California code
definition of completion is that ''by completion is meant conduct-
ing the waters to the place of intended use." ^^

It is sometimes said that there must be an actual diversion of the
waters; but this is too narrow a term, since in peculiar eases the
appropriation may be accomplished without any diversion at all.
Thus, straightening out a bed of a stream by dikes or dams con-
stitutes an appropriation, though there is no diversion at all.^^ So.
simply putting a large- current water-wheel in the stream itself
would doubtless be an appropriation of enough water to ran it.
Usually, however, there will be no completion without diversion;
and usually the diversion consists in carrying the water to distant
lands, wherein the doctrine of appropriation has its leading de-
parture from the common law of riparian rights.^**

§ 130. Means of Diversion. — ^Any means adapted to the
bona fide consummation of the intention to apply the water to the
beneficial use intended will be sufficient.

A person making an appropriation of water from a natural
stream need not construct any headgate at the place of diversion,
and if a simple cut will accomplish the purpose of diverting the
water from the stream, it is, if accompanied with a beneficial use.
a good appropriation as against others making a subsequent diver-
sion and use.*^*

§ 131. Diversion Alone. — Where the doctrine of relation is not
invoked, the diversion for a beneficial purpose is alone enough, con-

157 Bear Lake etc. Co. v. Garland, 75 Pac. 1092; MeCall v. Porter, 42
164 U. S. 1, 41 L. ed. 327, 1/ Sup. Ct. Or. 49» 70 Pac. 820, 71 Pac. 976.
Bep. 7. 1^ See Pomeroj on Biparian

158 Civ. Code, sec. 1417. Bights, sec. 48; Kinney on Irrigation,
169 Kelly V. Natoma etc. Co., 6 Cal. sec. 162.

305; Hoffman v. Stone, 7 Cal. 46; I6i Lower Tule etc. Co. ▼. Angiok

Suisun V. De Freitas, 142 Cal. 350, etc. Cb., 149 Cal. 496, 86 Pac. 1081.

§ 132

HOW AN APPROPRIATION IS MADE.

205

stituting the claimant an appropriator by actual diversion as
against later daimants.^^

But simple diversion, if not for a beneficial purpose, is ineffectual
in any case. Where water is diverted from the bed of a stream
not for use^ but to clear out and drain the channel, a mere drain-
age ditch, there is no appropriation.^^ Likewise where more water
is diverted than can be put to &y purpose, no right vests in the
surplus diverted over what is beneficially used.^®*

§ 132. Use of Exigting Ditches. — ^What means may be used in
making the diversion being immaterial, existing ditches or other
works may be used, if lawfully obtained. They may be used and
enlarged with the consent of their owner,^^ or may be abandoned
ditches, to which their owner makes no claim, or any other works
where the owner himself does not contest their use, and the use
of which wiil afford no ground for opposition by strangers to such
owners.^^ In a recent case in the supreme court of California,
>Ir. Justice Shaw said: ^^ ''A person who is making an appropria-
tion of water from a natural source or stream is not bound to carry
it to the place of use through a ditch or artificial conduit, nor
through a ditch or canal cut especially for that purpose. He may
make use of any natural or artificial channel, or natural depression,
which he may find available and convenient for that purpose,
so long as other persons interested in such conduit do not object,
and his appropriation so made will, so far as such means of con-
ducting the water is concerned, be as effectual as if he had carried
it through a ditch or pipe-line made for that purpose and no
other. "i«

Where existing works of others are used, the statutes for posting
notices need not be followed where there is no delay in the diver-

i«2 Ante, sec. 108 et seq.

103 Eddy V. Simpeon, 3 Gal. 249,-58
Am. Dee. 408; Maeris v. Bicknell, 7
CaL 261, 68 Am. Dec. 257.

iM Riverside etc. v. Sargent, 112
CaL 230, 44 Pac. 566; Senior v. An-
derson, 115 Cal. 496, 47 Pac. 454;
Smith ▼. Hawkins, 120 Gal. 86, 52
Pae. 139; Bledsoe v. Decrow, 132 Cal.
312, 64 Pac. 397; infra, sec. 168.

165 Water Supply Co. v. Larimer
etc. Co., 24 Colo. 322, 51 Pac. 496, 46
L. B. A. 322; Korth Point Co. v.
Utah Co.* 16 Utah, 246, 67 Am. St.

Bep. 607, 52 Pac. 168, 40 L. B. A.
851; Lehi Irr. Co. v. Moyle, 4 Utah,
327, 9 Pac. 867.

iw Utt V. Prey, 106 Cal. 392, 39
Pac. 807.

187 Lower Tule etc. Co. v. Angiola
etc. Co., 149 Cal. 496, 86 Pac. 1081.

168 Citing Hoffman v. Stone, 7 Cal.
49; Butte C. & D. Co. v. Vaughan, 11
Cal. 150, 70 Am. Dec. 769; Simmons
V. Winters, 21 Or. 35, 28 Am. St. Bep.
727, 27 Pac. 9; McCall v. Porter, 42
Or. 56, 70 Pac. 822, 71 Pac. 976:
Bichardson t. Kier, 37 Cal. 263.

206 THE LAW OF APPROPKIA'TlON. 5 133

sion ; for no claim is then made to the doctrine of relation ; nor, in
Colorado, need the statutes toj filing maps be f ollowed.^** Bnt the
appropriation, whether notice is posted or not, is a new one by ac-
tual diversion, standing in its own shoes, and can claim nothing
from the original appropriation through the same works. "^ The
appropriator in such case has no need to invoke the doctrine of i^
lation, since no time needs to be lost in construction work. His ap-
propriation need not proceed under the statutory formalities in
such a case; he claims as an appropriator by actual diversion.^"
But the appropriation consequently dates from the new use, not
from the original building of the ditch. The new appropriation
cannot claim to tack on to the old one.^^^ In Utt v. Prev,^"^ tiie
court said: '^If one animated by a like desire to appropriate water
under like circumstances finds a ditch already constructed to hand,
takes peaceable possession thereof, and appropriates the water for
a like or similar useful purpose, he thereby acquires a like right
as against all the world, except the true owner or those holding
under or through him. If nature or art has furnished the medium
of appropriation he may avail himself of the gift or labor, with-
out being held liable to those having no interest therein and in no-
wise connected therewith. To the owner of a ditch thus possessed
and used, such appropriator must account until his possession and
user ripens into a title by prescription or adverse user. His right
in such case will depend for priority as against other appropriators
of water from the same stream, upon the date of his possession and
appropriation, and not upon the date of the original construction
of the ditch, and appropriation by some other person under whom
he does not hold, and between whom and himself there is no privity
of estate. His appropriation in such. a case is a new and independ-
ent one, and must stand or fall upon its own merits." "*

§ 133. Same. — The use of existing works against the will and
objection of the owner when contested by him raises an entirely dif-

109 Wat«r Supply Co. v. Larimer 39 Pac. 1060, 30 L. B. A. 384; TTtt ▼.

etc. Co., 24 Colo. 322, 51 Pac. 496, 46 Frey, 106 Cal. 392, 39 Pac 807;

L. B. A. 322. Wood v. Etiwanda etc. Co., 122 Cal.

170 Union etc. Co. v. Dangberg 152, 54 Pac. 726; Tubbs v. BobertB
(Nov.), 81 Fed. 73. (Colo.), 92 Pac. 220.

171 Ante, sec. 108 et eeq. ; Brown v. 178 106 Cal. at 396, 89 Pac 807.
Newell, 12 Idaho, 166, 85 Pac. 385. 174 C/., however, McBae v. Small

172 McGuire v. Brown, 106 Cal. 660, (Or.), 85 Pac. 505.

S 133 HOW AN APPROPRIATION 18 MADE. 207

ferent question, however, and as to him the appropriation is in-
valid, in the absence of condemnation proceedings. The Oregon
court recently said:"*^ ** Plaintiff in error also forgets that it is
just as necessary to the creation and preservation of a water right
to provide means for the continual diversion of the water from
its natural channel and for conducting it to the place where it is
applied to some beneficial purpose, as it is to apply it to the bene-
ficial purpose. And he cannot arbitrarily seize and use another's
ditch, or interest in a ditch, for that purpose.'' **No consent to
divert the water from the ditch was ever secured, but Gage arbi-
trarily seized and used the conduit constructed across patented
land, and hence plaintiff, as his successor in interest, never ac-
quired any right by appropriation to the use of water from Beeves'
Creek." The question here is the same as that involved in the
discussion of whether an appropriation can be made by entry on
private land,*''* which need not here be repeated. To enlarge a
ditch on another's land, like building a new one thereon, is a taking
of an interest in his property, and can only be done against his pro-
test by condemnation for a public use.

Under the recent decision of the supreme court of the United
States in Clark v. Nash,"'' the statute of Utah permitting con-
demnation to enlarge another's ditch to carry water to one's own
private estate for irrigation was held constitutional. Similar stat-
utes have for some time stood on the statute books of other States.*''^
These and possibly similar statutes, enacted to declare the doctrine
of Yunker v. Niehols,^^ will probably be held valid by construing
them as providing for condemnation.*^ At all events, statutes
under the permission of Clark v. Nash are likely to be passed
hereafter similar to the Utah statute, and the result will be
general in the arid regions that an irrigator may build his ditch
over the land of another or enlarge another's ditch, without his
consent, after due notice and payment of compensation. A further

173 MeRae v. SmaU (Or.), 85 Pac. 22612263) and Oregon (Stats. 1891,

503; citing McPhall v. Forney, 4 P- 52, sees. 12, 13).

Wyo. 556, 35 Pac 773. ^^ ^~*«» sec. 81.

m Ante aec 78 et sea '*^ Colorado M. A. S., sec. 2256,

™ Ante, sec 7» et seq. 2257; Idaho Bey. Stats., sec. 3181;

m 198 U. 8. 361, 49 L. ed. 1085, Montana Comp. Stats. 1887, sec.

25 Sup. Ct. Bep. 676. 1240; North Dakota Comp. Laws,

ITS S. ff., Colorado (M. A. S., sees. 1887, sec. 2030.

208 THE LAW OF APPROPRIATION. §§ 134, 135

discussion of the principle is left to the chapter on eminent do-
main.^®*

When enlarging another's ditch under such statute, it is on
the theory of condemnation for a public use. There must be a
strong necessity to do so, and not some other equally practieable
way.^^ Damages must be paid to the man whose ditch is enlarged
or over whose land it runs/^ and the enlarger must bear the cost of
the work.*®* Whether the ditch of a competing company may be en-
larged by its competitor, qtiaere; the decisions do not agree.^^

§ 134. Changes in the Course of Construction. — Slight changes
may be made, and the original surveyed line departed from.*^

G. RELATING BACK.

§ 136. Origin of the Doctrine. — ^The question at what date the
right accrues as between rival claimants was first before court in
Conger v. Weaver.*®^ The court said :

**But, from the nature of these works, it is evident that it re-
quires time to complete them, and from their extent, in some in-
stances, it would require much time; and the question now arises,
at what point of time does the right commence, so as to protect
the undertaker from the subsequent settlements or enterprises of
other persons. If it does not commence until the canal is com-
pleted, then the license is valueless, for after nearly the whole
work has been done, anyone, actuated by malice or self-interest, may
prevent its accomplishment; any small squatter settlement might
eflFectually destroy it.

''But I apprehend that, in granting the license which we have
presumed for the purpose before us, the State did not intend that
it should be turned into so vain a thing but designed that it should

181 Infra, c. XV. etc. Co. v. Davis, 17 Colo. 326, 29

182 Downing v. Moore, 12 Colo. 316, Pac. 742; San Luis etc. Co. ▼. Kenil-
20 Pac. 766. worth Canal Co., 3 Colo. App. 244, 32

183 Clark v. Nash, supra, Pac. 860.

184 Patterson v. Ditch Co., 3 Colo. ise Conger v. Weaver, 6 Gal. 548,
App. 511, 34 Pac. 769; Clark v. Nash, 65 Am. Dec. 528; Parker v. Kilham, 8
198 U. 8. 361, 49 L. ed. 1085, 25 Sup. CaL 77, at 80, 68 Am. Dec. 310 ; Cal.
Ct. Sep. 676. Civ. Code, sec. 1415.

185 See Junction Co. v. Durango, 21 is7 6 Cal. 548.
Colo. 194, 40 Pac. 356; Sand Creek

S 136 HOW AN APPBOPRIATION IS MADE. 209

be effectual for the object in view; and it consequently follows
that the same nde must be applied here to protect this right as
in any other.

''Possession and acts of ownership are the usual indications
of a right of property, and these must be judged according to the
nature of the subject matter.

'*One is in possession of any empty house who has the key to
its door in his pocket; of a horse, when he is riding it; of cattle
pasturing upon his ground ; so a miner, who has a few square feet
for his mining claim which he cannot directly occupy, has posses-
sion, because he works it, or because he has staked it off to work it •
if his acts show no intention to abandon ; building a dam is taking
possession of water as a usufruct.

''So, in the case of constructing canals, under the license from
the State, the survey of the ground, planting stakes along the line,
and actually conmiencing and diligently pursuing the work, is as
much x>os8e8sion as the nature of the subject will admit, and forms
a series of acts of ownership which must be conclusive of the right. ' '

In Sieber v. Fringe the Colorado court said:^®® *'We accept the
rule adopted in California and Nevada in this connection. Th\s
role is stated as follows: 'Although the appropriation is not
deemed complete until the actual diversion or use of the water,
still if such work be prosecuted with reasonable diligence, the right
relates to the time when th^firststep is taken to secure it/ " In. .. ^
Alaska there appears to be no statute governing the making of an
appropriation, but the right is held to relate back to the com-
mencement of the work, nevertheless, since the rule always existed
under the decisions of courts from the beginning of the doctrine
of appropriation, before the passage of statutes.^®®

§ 136. Effect of Relation. — The doctrine of relation is invoked
to protect bona fide appropriators during the time they are build-
iiig ditches and other preparatory works; and at the same time,
to give no comfort to those who, not bona fide, try to monopolize
water for speculative purposes. It gives a qualified protection

158 7 Colo. 148, 2 Pac. 901. 18 Nev. 436, 4 Pac. 1215; Nevada etc.

159 Miocene Ditch Co. v. Jacobsen Co. v. Bennett, 30 Or. 59, 60 Am. St.
(C. C. A.), 146 Fed. 680. Rep. 777., 45 Pac. 472; Water Supply

The doctrine of rel&tion was also Co. v. Larimer etc. Co., 24 Cblo. 322,
applied inter alia in Irwin v. Strait, 51 Pac. 496, 46 L. R. A. 322.
Wftter Rights— 14

210 THE LAW OF APPROPRIATION. § 136

to the former. His right in 'any case comes into existence only
on completion of the work. But his claim is a preferred one. The
fact that he posted his notice first and worked diligently gave him
a preference over others; a kind of option, though his title did
not ripen until the option was vnth diligence exercised by a com-
plete diversion. This was decided after much discussion in the
case of Nevada etc. Co. v. Eidd,^^ holding in effect that the doc-
trine of relation does not vest a water right at the time of posting
notice, with a condition subsequent, as is often thought, but vests
the right upon actual diversion, with a preference to him who first
posted notice and worked diligently.^*^

It gives a preference to certain appropriators from the time
of completion, thence into the future ; it does not completely carry
title as owner of the water right back to the date notice is posted.
Consequently, in the interim between posting notice and actual
completion (which may be a considerable time) anyone else may
divert the water. There is no right of action for such diversion ;
there is as yet no water right acquired. But after completion, the
rights of the rival claimants for future purposes are considered
as relating back to the date of notice. The priority of appropria-
tion for future purposes is determined by looking back to that
date. All of these propositions are laid down in Nevada etc. Co.
V. Kidd,^®^ a case since frequently «ited and approved.***

The appropriator need not take notice of the interveners. His
right relates back and he is not under a duty to prevent others
from attempting to acquire temporary rights in the meantime.*^

If an appropriator, after duly posting a notice, and while prose-
cuting his work with diligence, posts a second notice of appropria-
tion of the same water, the right may still relate back to the first
notice.*^

The doctrine of relation is enacted in the Civil Code of Cali-
fomia:**® **By a compliance with the above rules the claimant's
right to the use of the water relates back to the time notice was

190 37 Cal. 282. Quoted supra, IM Woolman y. Garringer, 1 Mont,

p. 193. 535.

101 Accord Be Necochea ▼. Curtis, i06 Pomeroy on Riparian Bights,

80 Cal. 398, 20 Pac. 563, 22 Pac. 198, sec. 51; Norman y. Corbley, 32 Mont

and Wells y. Mantes, 99 Cal. 583, 34 195, 79 Pac. 1059; Osgood v. El-

Pac. 324. dorado etc. Co., 56 Cal. 571.

iw 37 Cal. 282. i96 Sec. 1418.

103 See ante, sec. 116 et seq. '

§ 137 HOW AN APPROPRIATION 18 MADE. 211

posted." There is no reason to think that this will not be con-
strued in accordance with the decision in Nevada etc. Co. v. Kidd,^^
as to intervening use, though the point of temporary intervening use
has not been under actual decision since the adoption of the Code.
The doctrine of relation was also applied in an early Nevada
ease,^^ with a dictum that relation was to the commencement of
actual work — not necessarily to the notice.**® The point is settled
in California by the code provision quoted above, and in the arid
States by statutes dating priority from the date of filing applica-
tion with the State Engineer.^^

Notice by relation prevails over the riparian rights of an inter-
vej^ng settler, both as to water rights and ditch rights.^^ Where
an appropriator posted notice, and thereafter a settler acquired
the land on which the stream arose (from airtesian wells), it was
held that the appropriator, with diligence, was entitled to continue
building his ditches, though, not entitled to develop any new
water by digging new wells.^^^ Relation back may preserve a ditch
right over a mining claim interveningly located before the ditch was
eompleted.^*^ But it will not put the ditch under an intervening
mortgage.^*^

II. ACTUAL APPLICATION.

§ 137. Necessity for Actual Application and Use. — Water must
be continually applied to a beneficial use under the doctrine of ap-
propriation. It was the theory on which the law arose, however,
that actual use was not itself an element in the creation of the
right, but that non-use would defeat a right ; that actual applica-
tion was not a condition precedent, but matter subsequent, operat-
ing by way of abandonment.

Historically, an appropriation was simply the taking possession
of the stream, so that diversion was the last step to such posses-

w See De Necochea v. Curtis, 80 200 Infra, sec. 148.

Cal, 396, 20 Pac. 663, 22 Pac. 198; 201 Wolfskill v. Smith, 5 Cal. App.

Burrows v. Burrows, 82 Cal. 564, 23 175, 89 Pac. 1001.

Pat. 146; WeUs v. Mantes, 99 Cal. 202 Wolfskill v. Smith, 5 Cal. App.

583, 34 Pac, 324. 175, 89 Pac. 1001.

»« Irwin V. Strait, 18 Nev. 436, 4 203 Miocene etc. Co. v. Jacobsen (C.

Pac. 1215. C. A.), 146 Fed. 680.

^^ The dictum is disapproved by 204 Bear Lake etc. Co, v. Garland,

Pomeroy on Riparian Rights, sec 54, 164 U. S. 1, 41 L. ed. 327, 17 Sup. Ct.

w>t*, and Kinney on Irrigation, sec. Rep. 7.
168.

212 THE LAW OP APPROPRIATION. § 138

sion, and the last step in completing the appropriation. Conse-
quently the California Civil Code says : ** *'By completion is meant
conducting the waters to the place of intended use," ignoring
actual application as an element of completion of the right. Con-
sequently, also, the rule protecting appropriators "by actual di-
version." And likewise, in the early cases concerning the doc-
trine of relation, that doctrine was said to be- invoked upon com-
pletion of work and diversion. Beneficial use was represented in
the acquisition of the right by the requisite of bona fide intentionj
already set forth. The actual accomplishment of this intention is
absolutely necessary, but the lack of its accomplishment was re-
garded as matter subsequent, working by way of defeasance, on the
principles of abandonment ; ^^ the right being complete on diver-
sion, that completing the formalities equivalent to taking pos-
session of the stream. The actual application and use of the
water may then follow, but need not do so immediately. The
appropriator has a reasonable time in which to prepare his fields,
or the place of use. An unreasonable delay is, however, evidence
of abandonment.^^

It is necessary to appreciate this historical view, for other-
wise it is not possible to understand many early decisions in this
and other connections (such as those measuring the amount ap-
propriated by the capacity of the ditch as well as by beneficial
use.)

§ 138. Same. — But the Colorado court ^^ interpreted the rule
as being that actual application of the water to the use intended
is a condition precedent to the creation of the right, and not neces-
sarily matter subsequent; and this has been followed in the arid
States and become the accepted form of statement; viz., that there
can be no appropriation until the actual use is made.^^ "No prin-
ciple in connection with the law of water rights in this state is

205 Section 1417. 208 Combs v. Ditch Co., 17 Colo.

206 See c. XIV, Abandonment. 1^6, 31 Am. St. Rep. 275, 28 Pac. 966
«-_oi. Aj 11K n ^ (in what was really a dictum not

207 Senior v. Anderson, 115 Cal. ^^^^^^^y. ^^ ti,e decision^

ton^ o^^ oon^^\' !a«^^^^^^ ^Fort Morgan etc. Co. v. So.

.130 Cal. 290, at 296 62 Pa^ 563; pj^^te D. Co., ifcolo. 1, 36 Am. St.

Heilbron V. Land etc. Co., 80 Cal, 189, jj^p 0.59, 30 Pac. 1032; Farmers'

at 193, 22 Pac. 62 ; Pomeroy on Ripa- etc. Co. v. Agricultural etc. Co., 22

nan Rights, sees. 49, 53; Kinney on Colo. 513, 55 Am. St. Rep. 149, 4f»

Irrigation, sees. 34, 348; but see sec. Pac. 444; Cash v. Thornton, 3 Colo.

167. And see infra, sees. 171, 231, App. 475, 34 Pac. 268; Larimer etc.

238 et seq. , Co. v. Cache La Poudre etc. Co., 8

5 138

HOW AN APPROPRIATION IS MADE.

213

more firmly established than that the application of water to a
beneficial use is essential to a completed appropriation.*' 2^*

So far as the enforcement of actual use is concerned, there is no
difference between the historical view and that of the arid States.
Non-use is fatal under either view and to the same extent under
both. But certain collateral results flow from the newer view of
the arid States that would not flow 'from the historical view. The
most important result of this departure from the original theory
is that when an irrigation company supplies water, the consumer,
who makes the actual irrigation, is considered the apprOpriator
of the water. In a leading Colorado case,^**^ it is said : * * To con-
stitute a legal appropriation, the water diverted must be applied
within a reasonable time to some beneficial use. That is to say, the
diversion ripens into a valid appropriation only when the water
is utilized by the consumer" ;^^^ and reaches the conclusion that
the consumer is the appropriator and the canal company only
agent to carry the water.^^^ This result of the Colorado theory is
considered and cases cited later at length.^^*

In Nevada Ditch Co. v. Bennett,^^* in Oregon, Wolverton, J.,
wavers between statements in the California authorities that only
the intent to apply to a beneficial use is the element of creation
of appropriation (the application being matter subsequent to the
creation of the right) and other statements in the Colorado authori-
ties that the consummation of the application to beneficial use is
the element. He tries to reconcile these two conflicting ideas in a
lengthy discussion; but when it comes to actual decision in the
case, he decides in accordance with the former (the original) view,
and holds that a distributing company is the appropriator, because
it has the intent to accomplish ^a beneficial use whether immediate
or through the mediation of others (whereas the Colorado cases
hold the consumer to be the appropriator because he alone con-

Colo. App. 237, 45 Pac. 525; Thomas
V. Gniiaud^ 6 Colo. 533; Farmers'
etc. Ck>. V. Southworth, 13 Colo. Ill,
21 Pac 1029, 4 L. B. A. 767; Town
of Sterling v. Pawnee etc. Co. (Colo.),
W Pae. 341. See cases infra , sec.
423.

2W« Conley v. Dyer (Colo.), 95 Pac.

2»o Wheeler v. Northern Irr. Co.,
10 Colo. 582, 3 Am. St. Rep. 603, 17
Pac. 487.

211 Accord Combs v. Farmers' D.
Co. (Colo.), 88 Pac. 399.

212 Though the consumer could as
well, if there were any agency in-
volved, be theoretically the agent of
the company to make the use.

213 Infra, sees. 182, 404, 423.

214 30 Or. 59, 60 Am. St. Rep. 777,
45 Pac. 472.

214 THE LAW OF APPROPRIATION. § 139

summates the actual use) . The court said : ** The water of a pul lie
stream is eventually applied to a beneficial use, and the general par>
poses of such appropriations accomplished." And adds that btne-
ficial use is enforced under this theory not as a condition pr»!ce-
dent, but by the penalty of suflPering an abandonment or forfeit ire
for waste.

That actilal beneficial use is really matter subsequent is indic«ited
by the tendency in Colorado in decreeing rights to measure awstrds
by the capacity of the ditch, and not by beneficial use, leaving the
non-use as -matter subsequent, to operate by way of abandonment
or forfeiture.

Upon the doctrine of relation, also, this divergence of views ffill
probably cause difl&culty. The original theory, considering the
appropriation complete on completion of the construction \kork
and diversion (the taking of possession of the water) necessit«ites
the enforcement of the doctrine of relation from that time, whei eas,
when the acquisition of the right is delayed until actual applica-
tion, it will keep open, and uncertain for years (under frequent
decisions) the doubt whether an appropriation exists, as some
States allow years to * pass (if a reasonable time) before the
application need be made ; ^^ and after those years of uncertainty,
will cut oflF the intervening rights of other claimants.*^®

The question pf actual application of the water will be matter
for consideration again, in discussing the amount an appropriator
can divert for future needs, without any present application there-
of.2"

§ 139. Recapitulation. — ^To sum up : An appropriation may be
made under the California method (the original method) by actual
diversion of the water for a beneficial purpose without more, and
is good against .all claimants (appropriators or riparian owners
in California) who seek to initiate a right subsequent to the date
of diversion; but no claim can be made to the benefit of the doc-
trine of relation so as to found any right antecedent to the diver-
sion.

To secure the benefit of the doctrine of relation, there must be
posted a notice of appropriation (which must be recorded), there
must be a hona fide intention to use the water for a beneficial pur-

215 Infra, sec. 171, Future Needs. 2i7 Infra, sec. 171.

210 See Seaward v. Pacific etc. Co.
(Or.), 88 Pac. 963.

§ 139a HOW AN APPROPRIATION IS MADE. 215

pose, there must be diligence in the construction work, and the
work must be completed (that is, the waters conducted to the
place of intended use). These requisites, as at present prevailing
under the California method, are substantially the same as those
established in the early days by the customs of miners and deci-
sions of the courts. ' They are founded upon the proposition that
the right to water by appropriation is a member of the large class
of possessory rights on the public domain, and these requisites
are the equivalent of taking possession. Actual application of
the \Y&ter is not a prerequisite, under the original theory, to the
vesting of the right. The right is complete when possession has
been taken. The water must be actually applied to a beneficial
use within a reasonable time or the right will cease by abandon-
ment; but application is not a prerequisite to invoking the doc-
trine of relation under the original theory. But in the arid States,
actual use has been added as itself an element in the creation of the
right, as well as the bona fide intention ; that is, the intention must
be actually consummated by use within a reasonable time before
an appropriation has any existence as such.

When the requisites stated have been completed, the right to the
water relates back to the date of posting notice, in order to de-

■

termine priority between conflicting claims, and gives the appro-
priator a better right than all claimants subsequent to the notice.
It does not, however, carry 1l>ack any right to complain of inter-
vening use by others in the meantime — such temporary use by
others is allowed ; it establisjies priority against them only for future
purposes. If the requisites stated have not been strictly complied
with, all benefit of the doctrine of relation is forfeited, and the*
chumant will have np right against those who actually divert the
water before he does, and will have only a temporary right against
those who have posted a notice and are working diligently ; a tem-
porary right which ceases when the others have completed their
ooDstniction work and are themselves in a position to divert and
uae the water.

§ ISOa. Supplementary nroceedings. — ^The same proceedings
Bet forth in section 149a below for obtaining additional privileges,
apply with equal force here.

216 THE LAW OF APPROPRIATION. $ 140

CHAPTER VIII.

HOW AN APPROPRIATION IS MADE— IN STATES ADOPT-
ING IRRIGATION CODES.

§ 140. The Wyoming method.

§ 141. Authority of State Engineer.

§ 142. ExclusiveneBS of the statutory method.

§ 143. Applieation for permit.

S 144. Examination of application and issuance of permit.

§ 145. Same — ^Rejection of applications.

§ 146. Prosecution of the work.

§ 147. Issuance of certificate..

S 148. Relation.

§ 149. Comments on operation of the statutes.

§ 149a. Supplementary proceedings.

§ 140. The Wyoming Method. — One of the essential features
of the new legislation is the adoption of a comprehensive method
of making^ appropriations hereafter. This legislation is adopted
chiefly by the arid States. The statutes in this respect are all much
alike, though varying in detail. This method is in force in Idaho,
Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, South
Dakota, Utah, and Wyoming, and to some extent in Colorado. The
recent Oregon statute resembles this method more than the Cali-
fornia method, while the former New Mexico statute resembled
rather the California method.^

• This method arose in Wyoming, and is, with the administrative
law centering about the oflBce of the State ilngineer, called **The
Wyoming system.*'. It is based on the original principles set forth
in the preceding chapter merely adapting them to a methodical
S3rstem of filings and records. In the main, the essentials of this
method consist in (1) an application for a permit; (2) an examina-
tion thereof and issuance of permit; (3) provisions governing the
prosecution of the work; (4) issuance of a certificate of appropria-
tion on completion of the work; (5)* numbering of the certificates
successively according to the date of the application for permit,
and dating priority by relation to that date. In some States the
matter is carried one step further, providing for the actual appli-

1 Changed in 1907.

§ 141

HOW AN APPBOPRIATION IS MADE.

217

cation and beneficial use of the water before the final certificate
issues. This method must be followed whatever the purpose of the
appropriation — ^whether for irrigation or other uses.

The method prescribed sometimes applies likewise to changing
or enlarging an appropriation, or else a similar method is specially
provided; e. g,, Nebraska, Idaho, Nevada, Utah and Wyoming.-
In (Colorado a change of point of diversion must be made in a
method similar to that provided for determination of priorities.^

Whether necessary for an irrigator to own or locate land under
these statutes before appropriating has been discussed elsewhere.^

§ 141. Authority of State Engineer. — ^These statutes give the
State Engineer a general authority over the making of appropria-
tions (except in Colorado where the office is merely ministerial
to receive and keep filings, without power of rejection). JThe power
of the State Engineer is purely ministerial, acting ex parte, and
open to judicial inquiry in the Federal courts.^ The United States
circuit court of appeals in an Idaho case has held all action by
the State Engineer in issuing permits to be void where his action
injures existing appropriators, and that a permit issued by the
State Engineer is of no avail if it is shown in court that the
appropriation would injure prior appropriators. An injunction
will be granted in spite of the permit.® The authority of the State
Engineer to issue permits if no one was injured was assumed for
the purposes of the case. **If they did so interfere, [with any
vested right of the appellant] then, manifestly, to the extent of
such interference, they were and are invalid and of no effect. ' ' "^

It has, however, been held in Wyoming that the decision of the
State Engineer cannot be collaterally attacked; that the decision
of the State Engineer in regard to issuance of a permit, where not
directly appealed from, is conclusive.® The statutes expressly, as

2 Nebraska (Ck>mp. Stats. 1903,
see. 6436), Idaho (Stats. 1903, p. 223,
sec 1, as amended 1905, p. 357), Ne-
^<la (Stats. 1905, p. 66), Utah,
(Stats, 1905, c, 108, sec. 53), and Wy-
oming (Rev. Stats., 917).

3 3 M. A. S., 1905 ed., sec. 2273d ^
et seq. See infra, sees. 182, 183.

* Supra, sec. 63 ; infra, sees. 185,
186.

5 Waha Co. v. Lewiston Co.
(Idabo), 158 Fed. 137.

6 Trade etc. Co. v. Fraser, 148 Fed.
587. See, also, Waha Co. v. Lewis-
ton Co. (Idaho), 158 Fed. 137.

7 Trade etc. Co. v. Fraser, 148 Fed.
587.

8 Whalon v. North Platte etc. Co.,
11 Wyo. 313, 71 Pac. 995. But cf.
Ryan v. Tutty, 13 Wyo. 122, 78 Pac.
661; Farmers' Irr. Dist. v. Frank,
72 Neb. 136, 100 N. W. 286.

218 THE LAW OF APPROPRIATION. f 142

a rule, allow such appeal. It has also been held that the statutes
placing discretion in these matters with the State En^eer are not
unconstitutional as conferring on him judicial powers, since the
right of direct appeal to courts is usually, by the statutes, expressly
allowed.*

That the power of the State* Engineer is open to collateral at-
tack in court by injunction or other process, as held in the Federal
case above, can hardly admit of doubt; for the statute certainly
cannot constitutionally give him power to authorize interference
with vested rights.

§ 142. Exclusiveness of the Statutory Method. — ^Under the
original method of appropriating, discussed in the last chapter,
the statutory method by posting notice is not exclusive ; an appro-
priation by actual diversion without notice may be as valid as one
with notice. Will this principle be applied under the irrigation
code method f

The statutes for applications and filings have been held in Colo-
rado^^ not to apply to a ditch taking water from an existing ditch ; ^^
nor to apply between rivals neither of whom has made filings, hold-
ing it no defense to a wrongdoer (at least one diverting the water
in another States) that plaintiff has not complied with the laws
for filings and other matters, so long as plaintiff was in i>08ses-
sion of the water for beneficial use. Possession is enough against
a i\rongdoer showing no better right.^^ These holdings seem to
follow in the line of cases cited in the preceding chapter uphold-
ing appropriations by actual diversion. It is probable that the new
statutes, however, intended to prevent that. The older statutes,
based on the California Civil Code, were merely to regulate the
doctrine of relation, while the new statutes described in this chap-
ter are not limited to that purpose, and seem to aim at a com-
prehensive and exclusive method of appropiriating. But in the Fed-
eral court for Montana, construing Wyoming law, the court also
applies the rule of appropriation by actual diversion, though
Wyoming to-day has these statutes varying from the California

•

9 Boise etc. Co. ▼. Stewart, 10 is Hoge y. Eaton, laS IVd. 411,
Idabo, 38, 77 Pac. 28. and cf, Morris ▼. Bean, 146 Fed.

10 Under sec. 2265, M. A. S. '425; Denver Co. v. Dotaon (Cbkx),

11 Water Supply Co. v. Larimer 38 Pac. 322.
etc. Co., 24 Colo; 322, 51 Pac, 496,

46 L. B. A. 322.

I 143 HOW AN APPROPRIATION IS MADE. 219

method which- seem to negative this. Judge Whitson supports
appropriation by actual diversion on principle, saying that actual
diversion is as much notice to later comers as is the statutory
notice or the application for permit.*^

These new statutes, consequently, may possibly come to be con-
strued in conformity with the old decisions; so that the irrigation
code method will differ from the original method in form only, and
not in substance.

§ 143. Application for Permit. — In all these States application
in duplicate must be filed with the authorities. In all but one,
the application must be made before beginning any work. The
exception is Colorado, where it must be filed within sixty days
after beginning.^^ The application is filed with the State^^ En-
gineer.*® ^ The form for these applications is in all furnished by the
State Engineer, and in most of the States must be sworn to. It
contains a statement of the plan of the work, the details of descrip-
tion required varying in the different States. Duplicate maps must
accompany the application in Colorado,^'' Idaho,^® and Wyoming,^®
and in most of these States. In four, however, the filing of maps is
postponed until after the approval of the application^^o jjj Idaho,
if applicant is a corporation, the application must contain matters
in description of the corporation also.^* In all, great discretion is
allowed the State Engineer in calling for additional information.
It is in all the duty of the State Engineer (Board of Irrigation
in Nebraska) to examine the application.

Making filings of maps or applicationis does not alone constitute
an appropriation, if not approved by the proper officials,^ nor if not
followed by the succeeding requisites, prosecution of the work,
and actual completion as the statutes may require.^ Filings under

13 Morris V. Bean (Mont.), 146 18 Stats. 1903, p. 223, see. 2, as

Fed. 425. amended 1905, p. 357.

H 3 M. A. &., 1905 ed., sees. 2265a, lo Bev. Stats., 917-924.

226511. 20 Infra, sec. 146.

^ In Oklahoma until 1907, the 21 Stats, supra.

Territorial 22 Toyaho etc. Co. v. Hutohins, 21

16 Nebraska, it mudt be filed with Tex. Civ. App. 274, 52 S. W. 101.
Board of Irrigation (Oomp. Stats. 28 Jarvis ▼. State Bank, 22 Colo.

1903, p. 6436), whose secretary is 309, 55 Am. St. Bep. 129, 45 Pac.

the State Engineer. 505.

1'^ Stats, supra.

220 THE LAW OF APPROPRIATION. $ 144

an unconstitutional statute are void.^^ A verified statement filed
and introduced in evidence is not evidence of title, and cannot

be held to be constructive notice of the existence of such ditch,

■ »

if the statute under which the same was filed has been declared
unconstitutional.^

Forms for applications and filings are given at the end of this
book.

§ 144. Examination of Application aAd Issnanoe of Permit. —

The State Engineer is required to examine the application, com-
paring it with the iuformation and records of existing appropria-
tions in his office, and may usually call upon the applicant for
additional information, or send the application back to the appli-
cant to be corrected. He makes a record in his office of the date
of filing the application, and, in general, of all papers filed with
him. Xn Nevada and Utah special provisions are made to give
others a chance to protest. In these two States, the State Engineer,
after examining the application, publishes a notice of the applica-
tion in a newspaper for thirty days (in Nevada, four weeks), and
within thirty days after final publication, protests may be filed
with him.^ If everything is satisfactory, the State Engineer in-
dorses on the duplicate application, in all the States, his approval,
and makes a record thereof, and returns it to the applicant, which
constitutes his permit to proceed. If rejected, it is returned so in-
dorsed, with reasons. Appeal usually lies from the State Engineer
to the governing board or to court.

Permits may be sold or assigned, and the purchaser thereof will
succeed to the rights under the permit.^

Injunction will be granted against diverting water above a dam
to injury of dam and lessening the fall used for power though
defendant had the State Engineer's permit.^

24 Great Plains etc. Co. v. Lamar 26 Nev. Stats. 1905, p. 66; Utah
eitc. Co., 31 Colo. 96, 71 Pac. 1119: Stats. 1905. c. 108, sees. 36-40. Like-
Lamar etc. Co. v. Amity etc. Co., 26 wise in North Dakota, Oklahoma,
Colo. 370, 77 Am. St. Rep. 261, 58 South Dakota. See Statutes in Part

Pac. 600,- Mohl v. Lamar Canal Co., ^i,*^™7\ ^. ^, ^, ^^ ^ ^

128 Fed 776 Whalon v. ^o^th Platte etc. Co.,

supra.

25 Blake v. Boye (Colo.), 88 Pac. , 28 Trade etc. Co. v. Praser, 148
470. Fed. 587.

§ 145 HOW AN APPROPRIATION IS MADE. 221

§ 146. Some. — Concerning the rejection of applications in
practice it is said in Bulletin 168, United States Department of
Agriculture (published in 1906) :

Idaho. — **As has been shown in the previous pages, there is no
provision for securing a complete list of all rights to water from'
any stream, and without such a list neither the engineer nor the
applicant can tell from the records whether there is unappropriated
water in any stream. In many cases it will, of course, be a matter
of common knowledge that a stream is or is not fully appro-
priated, and there may be little danger of injustice so. far as the
applicant is concerned."^

Nebraska. — **The rejection of applications seems to be much more
common in Nebraska than in the otl^er States. The report of the
secretary for 1899 and 1900 states^ that in those two years 210
applications were allowed and 126 dismissed. In the succeeding
two years 74 were allowed and 17 dismissed. The right of the botfrd
to reject applications has never been passed upon by the courts. In
the one case of appeal from the secretary this question was not
passed upon. This right has been denied in Utah and Idaho*^
and in Wyoming is seldom exercised. ''

Wyoming. — ^** While the engineer has authority to reject an ap-
plication when there is no unappropriated water in the source of
supply mentioned in the application, and this has sometimes Been
done, it is not the usual practice. There is usually some flood
water, and always the possibility of an increased supply from
seepage or more economical use by the holders of prior rights,
and consequently permits are frequently granted when the rec-
ords of the engineer's office show little unappropriated wa-
ter Since the adoption of the present system of acquir-

inj? rights a number of canals have been built without complying
with the law regarding making application to the State Engineer. ' '

General. — ^*' Wyoming, the pioneer State in providing for the
public supervision of the acquirement of rights, gives the engineer
authority to reject applications which are contrary to public
policy. This has been followed by most of the States which have
adopted codes in recent years. This provision is so general in its
terms that it may be interpreted to mean much or little. In

29 This is the reason usually given 30 Page 9.

in support of the old rule for appro- 31 See pages 53, 69.

priation bv actual diversion.

222 THE LAW OF APPROPRIATION. § 146

Wyoming charges of favoritism were made against the engineer,
and the exercise of this authority has given him a great deal
of trouble. The engineer of Nevada holds that this provision gives
him no authority to reject applications which conform to the gen-
eral rules of the office. The Utah engineer held that this provi-
sion gave him authority to choose between possible uses and refused
an application for a use which in his opinion was not for the best
possible use of the water. Appeal was taken to the courts, the
engineer was overruled in this matter, and at the next session of the
legislature the law w^as repealed. In the other States which have
adopted this provision the law is not yet effective. It appears,
therefore, that this law is either ineffective or unpopular with both

the engineers and the public The flow of a stream is not

fixed, but increases and decreases from year to year, the flow in the
latter part of the season almost universally inereasing as the lands
along its banks are irrigated, while the water requirements of land
under irrigation have a tendency to decrease. The engineer is not,
therefore, in a position to state that there is at any time no unap-
propriated water in a stream ta which rights can be acquired."

•

§ 146. Prosecution of the Work. — In the States which do not
require maps upon the filing of the application, duplicate maps must
be filed with the State Engineer after its approval. In (Colorado
maps must be filed within sixty days after beginning work.^ In
Texas, .within ninety days.^ In Nebraska, Nevada and Utah, with-
in six months after approval.^

In all the States the work must be prosecuted with diligence;
but certain limits are placed in some of them. Work must begin
in Nebraska and Utah within six months after approval of applica-
tion.^ In Wyoming it must begin within a time fixed by the State
Engineer, not exceeding one year.^ In Idaho if the capacity of
the proposed works is less than twenty-five cubic feet per second,
work must begin within sixty days; if over that capacity, a bond
must be filed within sixty days in an amount fixed by the State

32 3 M. A. S., 1905 ed., sees. sees. 42-44; Nevada Stats. 1907, p.
2265a-h. 30, sec. 28. In Nevada the statute

33 Sayles' Civ. Stats., arts. 3120, of 1905, page 66, required maps on
3121. approval of the application.

34 Neb. Comp. Stats. 1903, sees. 35 Stats, supra.
6437, 6470; Utah Stats. 1905, c. 108, 38 Rev. Stats., 922.

S 146

HOW AN APPROPRIATION 18 MADE.

223

Engineer not exceeding $10,000.^^ The work must be completed,
in Idaho, Oklahoma, South Dakota, Utah, and Wyoming within five
years, but the State Engineer may name a shorter time,^ while in
Nevada it must be completed in the time requested in the appli-
cation, though the State Engineer may name a shorter time.^ In
Idaho, Oklahoma and South Dakota there is a further provision
that one-fifth of the work must be done in one-half the time al-
lowed, and the S&te Engineers of some of the other States ^
specify the same requirement in the absence of statute upon the
point.**

If the State Engineer revokes a permit for failure of one-fifth
of work, and an appeal is taken from him to the State court, the
ease is not really an appeal but becomes a judicial suit, and is remov-
able to the Federal courts.^

Proof of completion of the work must be made in all States
except Colorado. In Idaho and Utah there are special methods
for making this proof. In the former it must be filed with the
State Engineer on a form provided by him, and, if the works ex-
ceed a capacity of fifty cubic feet per second, mtist be certified to
by some competent and well-known irrigation engineer. This is
published for four week^ in a newspaper. The State Engineer
then makes an examination of the works and files a report. If all
is satisfactory he issues a certificate of completion.^ In Utah, a
sworn statement and proof must be filed with the State Engineer
on a form provided by him, subscribed by two witnesses, and ac-
companied by maps also certified.^ In most of the States the
method of making proof of completion is left .to the discretion of
the State Engineer or Board of Irrigation.

On proof of completion, a certificate is issued which is final,
with the exception of four States and Territories,** where the final
certificate is not issued until actual application of the water to a

37 Stats. 1903, p. 223, sees. 2, 3,
as amended 1905, p. 357. ''The pro-
viaon for filing bond conditioned on
completion of the work was enacted
in 1905, and there has been little
opportunity to observe its workings.
Its natural result will be to prevent
filings for the purpose of blocking
some other enterprise or for the pur-
pose of selling worthless 'rights'
based only on a permit from the en-

f >

Bulletin 168, U. S. Dept.

gineer.
Agric.

38 Stats. 9upra.

30 Stats. 1905, p. 66.

40 See forms in Part VII below.

-ti Stats. 8upra.

« Waha Co. v. Lewiston Co.
(Idaho), 158 Fed. 137.

43 Stats. 9upra,

44 Stats, supra, sees. 42, 44.

45 Idaho, North Dakota, Oklahoma,
and South Dakota, sec. 147, below.

224 THE LAW OP APPBOPBIATION. 5S 147, 148

beneficial use, and Colorado, where the first certificate (issued on
original application to appropriate) ends the appropriator's con-
nection with the office of the State Engineer.

The statutes which stop at completion of work r^ard actual use
as not entering into making the appropriation, but as matter sub-
sequent, non-use operating by way of abandonment or forfeiture.

§ 147. Issuance of Oertiflcate of Appropriation. — ^The final
stage in making the appropriation is the issuance of a certificate
of appropriation. These certificates are numbered consecutivdy
according to the date of original application for a permit, thus pre-
serving the doctrine of relation, which was one of the chief features
of the law of appropriation as it originally arose in California.

Upon the proof of completion of work the State Engineer (the
Board of Irrigation in Nebraska) issues a certificate to the appro-
priator under his seal stating details varying in different States.
A record of this is made in his office. The appropriator is required
to record this with the recorder of the county in which the water
is diverted, and, in a few of these States, with the head of the
water subdivisions in which the stream lies.*®

In Colorado, the approval of the original application constitutes
a certificate of appropriation.*^ On the other hand, in Idaho,
North Dakota, Oklahoma, and South Dakota, there, is one further
step that must be gone through before the final certificate is issued.
Within a fixed time after the issuance of the certificate of comple-
tion of work, there must be filed with the State Engineer a sworn
notice of actual application and use of the water. This notice
must be subscribed by two witnesses. The State Engineer must
then make an examination of the use to which the water is put.
Protests may be filed with the State Engineer by other parties.
If all is satisfactory, the State Engineer issues a final certificate,
or, as it is in these States called, a license, bearing the number and
date of the original application for permit, and it is filed and put
on record as in the other States.^

§ 148. Relation. — ^Priority in all dates from the date of filing
of the original application; and this is evidenced by numbering

40 Stats, supra. See infra, sec. 383 48 Idaho Stats. 1903, p. 223, se«s.

et seq. 4-12, and see Part VI, below.

47 3 M. A. S., 1905 ed., sees. 2265a,
2265h.

If 149, 149« HOW AN APPROPRIATION 18 MADE. . 225

all certificates conaecutively.^ One holding a permit will, by

rdation back, prevail over another who commenced work earlier

without a permit.*^

In Idaho, on enlargement or on a grant of extra time, priority

dates from the application for permission to make such enlarge-
ment or to have such extra time.^^

The great formality attending appropriation under these stat*
utes is not unlikely to somewhat hinder any but large enterprises,
and tend somewhat to prevent small appropriators from acquiring
rights. Evidently it is intended that large companies shall be
formed to supply consumers, rather than that consumers should
supply themselves directly, as heretof ore.^^

§ 14B. Comments. — Concerning Ihe practical operation of the
statutes requiring applications and filings, the following may be
quoted : *•

Idaho, — ''Most of the applications made have to be returned to
the applicants for correction, and as a rule they are corrected
in accordance with the suggestions of the engineer and returned.
Many applicants employ attorneys to make out their papers, but
as a rule these do not meet the requirements any better than the
others/'

Wyoming. — ^''Although a blank on which to make this application '
is furnished by the office, nearly one-half of those received have to be

returned for correction Parties who have no well-defined

idea of constructing ditches file applications for permits simply
because it costs nothing The tendency of recording specula-
tive filings is only one of the evils. The more aggravating one is
the carelessness with which many of the statements are prepared."

To avoid speculative filings was one of the chief objects of these
statutes.

•

§ 149a. Supplementary Proceedings. — The preceding rules are
complete in themselves, and the right thus acquired under local
law is secured to the appropriator, so far as Federal legislation

^ Stats, supra. be a great aid in the construction

90 Wbalen v. North Platte etc. Co. of extensive canals. ' * Bulletin 16$,

(W70.), supra. U. S. Dept. Agric.

M Stats. 1903, p. 223, sees. 5, 8. 53 From Bulletin 168, U. S. Dept.

B2 <<The present law is destined to Agric.
Water Bichti--15

226 THE LAW OF APPBOPBIATION. § 149a

is concerned, by sections 2339 and 2340 of the Revised Statutes
of the United States. But the appropriator may, if he chooses, have
the additional security in certain cases of having his right placed
of record in the office of the Secretary of the Interior, and may
also secure the additional privileges of building across government
reservations, of using, in construction work, materials (stone, tim-
ber, etc.) on the public land adjacent to his ditch, canal, reservoir
or other works, and may also secure land for a reservoir site,
and also an additional fifty feet on each side of his canal. These
additional privileges are accorded by the act of Congress of March
3, 1891, and subsequent acts supplementary thereto."

The acts granting these added privileges contain clauses ex-
pressly declaring that they are subject to the local law for acquisi-
tion of rights, and they are hence only optional, not obligatory,
and give no precedence or favor over prior appropriators or ditch
builders who have not sought to avail themselves of these acts,^ nor
over prior settlers.**

Under these acts the appropriator (who must be an organized
company and not an individual) must, to secure these added
privileges, not only comply with the laws of the State as in this and
the preceding chapter set forth, but also file with the Secretary of
the Interior a copy of its articles of incorporation, and also maps
and statements describing the proposed right of way, and these
must be approved by the Secretary of the Interior, who will hear
protests from other parties before giving his approval. Maps may
be received of canals already constructed at the time of the pas-
sage of the act, as well as new canals.^

. Only irrigation companies were within the terms of the act of
1891,^'^ and the Secretary of the Interior refused to approve filings
of companies seeking to build canals for electric lighting, water-
power,** or city water supply,*^® or floating lumber,** or domestic,
manufacturing or hydraulic purposes.®^ By the act of May 11,
1898, however, irrigation companies are permitted to make filings.

M See infra^ Part VI. Nippel v. Forker (Colo. App.), 47

55 Lincoln etc. Co. v. Big Sandy Pac. 766; United States v. Conrad

etc. Co., 32 Land Dec. 463. Ac- Inv. Co., 156 Fed. 131.

cord, 29 Land Dec. 213; 20 Land B6 15 Land Dec. 578.

Dec. 155; 16 Land Dec. 192; 15 57 32 Land Dec. 452.

Land Dec. 470, 578; Baldridge etc. 58 18 Land Dec. 573.

Co. V. Leon etc. Co., 20 Colo. App. 58 20 Land Dec. 154, 464.

518, 80 Pac. 477; Whitmore v. Pleas- «> 21 Land Dec. 63.

ant Valley Co. (Utah), 75 Pac. 748; «i 25 Land Dec. 344.

S 149«

HOW AN APPBOPBIATION IS MADE.

227

though they also proposed other subsidiary uses, if the subsidiary
uses are of a public nature.®^ By act January 13, 1897,® a similar
act was provided for appropriations for watering livestock.

The privileges of these acts may be obtained over all public lands,
including Indian reservations.** The privilege did not originally
extend to forest reserves,®^ but special acts confer the privilege over
forest reserves with additional requirements.*^ The acts do not ap-
ply to Alaska.®^

By compliance with the act of 1891, only an easement is acquired,
and no right to occupy the land for the purpose of building a
house.^ The estate granted under the act of. 1901 is of a less per-
manent nature than under the act of 1891, being a mere revocable
permission or license and not a vested easement.^ The approval
of filings under the act of 1891 gives no exclusive right to a canyon
or defile, and a right of way may also be granted, if practicable,
to other parties.*^^ The right to use adjacent materials (stone, tim-
ber, etc.) applies only to the original construction and not to addi-
tions or repairs.'^*

The canal or other work must be completed within five years;
otherwise these additional privileges are forfeited. A suit may be
brought in the name of the United States to declare such forfei-
ture,^ or the privileges will be held forfeited in a State court
in a suit between private parties without any special action to de-
clare the forfeiture where the claimant has also lost his appropria-
tion proper, according to State law ; ^ that is, these special privi-
leges fall with the ordinary rights when the latter fall under local
law.

Compliance with these acts gives no rights contrary to local
law, nor where the local law is not also complied with. These

02 32 Land Dee. 462; 35 Land Dee.
154.

63 29 state, at Large, 484.

M United States v. Conrad Inv. Co.,
156 Fed. 131. Aceord 33 Land Dee.
564; 27 Land Dee. 421; 35 Land
Dee. 550.

«5 35 Land Dee. 156; 28 Land Dee.
474; 34 Land Dee. 215.

<» A. C. May 14, 1896; 29 Stats.
120; A. C. Feb. 15, 1901; 31 Stats.
790; A. C. June 4, 1897, and A. C.
Feb. 1, 1905. See, also, 32 Land
Dee. 145.

67 26 Land Dee. 305; 35 Land Dee.
297.

68 Whitmore v. Pleasant Valley Co.
(Utah), 75 Pac. 748; Nippel v.
Forker (Colo. App.), 47 Pac. 766.

69 31 Land Dee. 13; 32 Land Dee.
461.

70 35 Land Dee. 637.

71 34 Land Dee. 213.

72 33 Land Dee. 469.

73 Baldridge etc. Co. v. Leon ete.
Co. (Colo.), 80 Pac. 477.

228

THE LAW OF APPROPRIATION.

S 149«

acts are merely supplementary and additional to the local law
where the appropriator desires the added privileges' granted by
these actsJ*

74 See authorities supra.

The. writer has the following let-
ter from the General Land Ofl&ce:
''DEPARTMENT OF THE INTE-
RIOR,
''General Land Office,
"Washington, D. C, March 26, 1908.

"In reply to your letter of March
12, 1908, you are advised that the
question as to whether rights of way
may be obtained under Sections 23S9
and 2340 of the Revised Statutes since
the passage of the act of March 3,
1891 (26 Stat. 1095), apparently has
not been decided specifically by the
Department, but it may be in a short
time.

"It is better for the applicant in
every case who contemplates construct-

ing works for irrigationy etc., in-
volving a large expenditure of money
to have some record evidence of hm
right of way, such as is the .case
when applications are filed under the
provisions of the right of way acts.
No more definite information as to
whether parties must file under the
act of 1891 or whether they may
construct and obtain rights imder said
sections can be given at this time.
For regulations under the act of
March 3, 1891, see Vol. 34 of the
Land DecisioiiB, page 212.
"Very respectniUy,

"8. V. PROUDPIT,
"Assistant Commissioner."

i 150 AKTIPICIAL. WATER0OUB8E8. 229

CHAPTER IX.

MEANS OP USE— USE IN ARTIFICIAL WATERCOURSES

(DITCHES, PLUlVfES, PIPES, ETC.).

A. ARTIFICIAL WATERCOURSES.

§ 150. Introductory.

S 150a. Use in artificial watercourse.

§ 151. Ditch, etc., an easement.

§ 152. Ditch and water right distinguished.

B. WATER IN ARTIFICIAL WATERCOURSE.

5 153. Water in artificial watercourse — Water and water right distinguished.
§ 154. Water in artificial watereouse is personalty.
€ 154a. Same.
§ 154b. Same.

§ 155. Same — As affecting water supply contracts.
§ 155a. Same — As affecting 'development'' of water.

§ 156. The law of natural waters does not apply to water in artificial water-
course.
§ 157. Same — Drainage water.
S 158. Same — Drainage into a natural stream.
§ 159. Same.

C. USB OP ARTIFICIAL WATERCOURSE.

§ 160. Contracts concerning ditches.

{ 161. Joint use of ditch.

§ 162. Repair of ditches.

§ 163. Damage from breaking ditches.

§ 164. Same.

A. ARTIFICIAL WATERCOURSES.

§ 160. We now leave the questions arising out of the obtaining
of water rights, and take it as granted that a valid water ri^ht
has been obtained by appropriation, as previously set forth. The
inquiry now is as to the limits within which the water can be then
used. The limitations to be considered are (1) those concerning
the means of enjoyment; (2) concerning the amount of water; (3)
concerning changes in the mode of enjoyment. These are consid-
ered in successive chapters.

234

THE LAW OF APPROPRIATION.

S 1^

of the stream and under private control ceases to be without an
owner. It is in this that the distinction lies at the very basis of
all legal conceptions of rights in watercourses. The water out of
the stream ceases to be without ownership, but is ''water with
somewhat of a proprietary right. ' ' *^

The law distinguishes between the water in a natural stream,
and the right to its use and flow; between the corpus or particles
or aggregate drops of liquid,, and the usuf ructuar^'^ right with re-
spect to it.

While in the natural stream, the law says the stream water is
not itself the subject of private ownership. The California court,
for example says: ''This court has never departed from the doc-
trine that running water, so long as it continues to flow in its
natural course, is not, and cannot be made, the subject of private
ownership, ' ' ^ the point of view being that stream water in a nat-
ural stream is like the air, a wandering, ownerless thing, ever
changing its form, and neither real property nor personal property ;
being not the subject of ownership at all. The particles of the nat-
urally flowing liquid are, in the view of the law, in a class with
the particles of air in the atmosphere. This classification, from
which the California court has never departed, stands in the In-
stitutes in the well-known passage: "By natural law these things
are common: Air, running water, the sea, and, as a consequence,
the shores of the sea,"^ which passage in the Institutes is "the
beginning of things" in the law of running streams as opposed to
the law of percolating or standing water. The statement is taken
almost word for word by Bracton as the law of England,^ is para-
phrased in Fleta,^ is restated as the conunon law in early cases,^
and passes into Blackstone, who says: "But, after all, there are
some few things which, notwithstanding the general introduction
and continuance of property, must still unavoidably remain in com-
mon Such (among others) are the elements of light, air,

and water A man can have no absolute permanent prop-

yl Lord HalBbuTj, Chancellor, in
White V. White, [1906] App. Caa. 84.

42 Kidd V. Laird, 15 Cal. 161, 76
Am. Dec. 472.

43 Institutes of Justinian, lib. 2,
tit. 1, sec. 1. ''Et quidem naturali
jure communia sunt omnia haec; aer,
et aqua profluens, et mare, et per hoc,
littora maris."

44 Bracton, lib. 2, f. 7, sec. 5.

48 Fleta, 3 lib., cap. 1, see. 4.

46 Liggins V. Inge, 7 Bing. 692,
classing running water with the air
and those things the property of
which belongs to no person; Will-
iams V. Moreland, 2 Bam. & C. 910,
saying: '^ Running water is not in
its nature private property."

§ 153

ARTIFICIAL WATERCOURSES.

235

erty in these, as he may in the earth and land, since these are of
a vague and fugitive nature"; ^"^ and from this passed into the law
of appropriation also.^ This fundamental principle that running
water {aqtM profluens) as a substance is not and cannot, while
flowing naturally, be made the subject of private ownership, but is
in a ^lass with the air and those things that cannot be owned, is
stated in many authorities.*^

But while the law does not regard the liquid itself as property
while flowing naturally, it recognizes, nevertheless, a very sub-
stantial property right in its use and flow; the right to have the
liquid flow and to use it; which the law calls **the usufructuary
right," or ''the water right." Continuing the passage above
quoted from Eidd v. Laird, ''A right may be acquired to its use
which will be regarded and protected as property, but it has been
distinctly declared in several cases that this right carries with it no
specific property in the water itself." And says Blackstone,*^
''For water is a movable, wandering thing, and must of necessity
continue coaunon by the law of nature ; so that I can only have a
temporary, transient usufructuary property therein." And says
Story,*^* '*But strictly speaking, he has no property in the water
itself but a simple use of it as it passes along. ' ' And Kent,^ ' ' He

^7 2 Blackstone's Commentaries, 14,
395.

^ Kidd V. Laird, Mtpro.

^ "The water which they claim a
right to take [from a spring] is not
the produce of the plaintiff's close;
it is not his property; it is not the
subject of property. Blackstone, fol-
lowmg other elementary writers,
classes water with the elements of
tight and air." Race v. Ward, 4
El. k BL 702. To the same ef-
fect, Wood V. Wand, 3 Ex. 748;
Mason v. HiU, 5 Bam. ft Adol. 1;
Embrey v. oWen, 6 £z. 352. In
White V. White, [1906] App. Cas.
84, in the House of Lords, a claim
to the ownership of the corpus of
the water of a stream as a substance
ivas said to be ''so repugnant to the
general laws of rivers that it is
surprising." Likewise Gibson, C. J.,
in Mayor v. Commissioners, 7 Pa.
St 363; Chief Justice Shaw in El-
liott V. Fitchburg By. (Mass.), 10
Cuah. 191, 57 Am. Dec. 85; Justice
Story in Tyler v. Wilkinson, 4 Mason,

397, Fed. Cas. No. 14,312; Kidd v.
Laird, 15 Cal. 161; Gould v. Eaton,
117 Cal. 542; Eddy v. Simpson, 3
Cal. 249; McDonald v. Askew, 29 Oal.
200 ; Nevada etc. Co. v. Kidd, 37 Cal.
282; Los Angeles v. Baldwin, 53 Cal.
469; Mr. Justice Shaw in Duckworth
V. Watsonville Co., 150 Cal. 520,
89 Pac. 336; Crawford v. Hathaway,
67' Neb. 325, 108 Am. St. Rep. 647,
93 N. W. 781, 60 L. K. A. 889 ; Saint
v. Guerrerio, 17 Colo. 448, 31 Am.
St. Rep. 320, 30 Pac. 335; Nev.
Stats. 1907, p. 30, sec. 3, and many
other authorities, some of which are
hereinafter cited. Additional civil
law authorities are Vinnius, cited in
Mason v. HiU^ supra; 1 Vattel, Law
of Nations, c. 20; Domat's Civil
Law, sec. 416; Droit Civile Francais
par Aubrey & Bau, 4th ed., vol. II,' p.
34; Hall's Mexican Law, sec. 1392.

^ 2 Blackstone's Commentaries, 18.

61 Tyler v.' Wilkinson, 4 Mason,
397, Fed. Cas. No. 14,312.

52 3 Com. Marg., p. 439.

236

THE LAW OF APPROPRIATION.

S 153

has no property in the water itself but a simple usufruct as it passes
along." This principle of a private right in the use as distin-
guished from the substance itself is taken from the law of "'usu-
fruct" in the Institutes,^^ and is well recognized to-day.** This
usufructuary right, or ** water right," is the substantial right with
regard to flowing waters; 'is the right which is almost invariably
the subject matter over which irrigation and similar contracts are
made and litigation arises; and is real property .°^

The foundation of these rules being the civil law proposition that
the particles or aggregate drops of running water, so long as they
flow in their natural course, are not property nor the subject of
ownership, but are in a class with the air and those things which
cannot be owned, we now follow the particles of the liquid from the
stream into a ditch into which they have been diverted.

Following the particles of the liquid from the stream into the
ditch, there then has come a change in the ''wandering" (as Black-
stone says) of the liquid that has been taken into the ditch. It is
like the change^ regarding wild birds caught in a snare, wild
animals caged, fish caught in nets. Before capture, none of these
was regarded as property, real or personal , being wandering, owner-
less things; while wandering at large they are nobody's property;
but after capture, they become the private property of the taker
So with any specific particle of water that has passed into private
control in a reservoir, ditch or other artificial applian'ce. The par-
ticle has been taken from its natural haunts, so to speak, and passed
into private possession and control, and become private property.*'
In one case it is said that no one can have property in the water of

93 Institutes of Justinian, lib. 1,
tit. IV, V; Pandects, lib. VII;
Noodt's "De Usuf nictu, ' ' opp. torn.
1, pp. 387-478.

M Authorities cited supra.

55 Supra, sec. 65.

M 2 Blaekstone's Commentaries,
14, 395; Judge Field in Spring Val-
ley W. W. V. SchottWr, 110 U. S. 347,
373, 28 L. ed. 173, 4 Sup. Ct. Kep.
48, quoted infra,

57 At civil law (L#ord Denman, in
Mason v. Hill, 5 Barn. & Adol. 1) :
**No one hacl any property in the wa-
ter itself except in that particular
portion which he might have di-
stracted from the streamy and of

which he had the possession, and dur-
ing the time of such possession only. ' '
And at common law (Baron Parke,
in his classical opinion in Embrey t.
Owen, 6 Ex. 352) : < < None 4san have
any property in the water itself, ex-
cept in the particular portion whiek
he may choose to <ibstract from the
streamy and take into his possession,
and that during the time of his pos-
session only." See, also. Field, J., in
Atchinson v. Peterson, 20 WaU. 507,
22 L. ed. 414; Spring Valley W. W.
V. Schottler, supra. Under the law
of appropriation, see Kidd v. Lainl,
quoted infra^ sec. 154b.

S 153 ARTIFICIAL WATERCOTTRSES. . 237

a river, but "Water drawn from a river into vessels or into ponds
becomes private property. ''*^^» One writer** says in comment-
ing on the passage in the Institutes regarding air and running
water and things common: "In case any of these things is such
that in its nature it can be taken into possession, it belongs to
the possessor." No one owns the air, but the inventor who liqui-
fied it owned so much as was liquid in his laboratory; it is his
private property while in his possession.

The analc^y to the very fish in the water shows well the point
of view. While swimming in the stream they are not the subject
of private ownership, and (though one may own the usufructuary
right of fishing) nobody owns the fish themselves,^^ but he owns them
when caught in a net.^ In the same passage above quoted where
Blackstone classes the substance of running water with the air.
he also says: "Such (among others) are the elements of light, air,

and water Such, also, are the generality of those animals

which are said to be ferae naturae, or of a wild and untamable
disposition, which any man may seize upon and keep for his own
pleasure," and which belong to him while under his possession
and control.^ A similar comparison was made by Judge Field
with regard to the water in the reservoirs of the Spring Valley
Water Company, saying: "Indeed, it is a general principle of law,
both natural and positive, that where a subject, animate or inani-
mate, which otherwise could not be brought under the control or
use of man, is reduced to such control or use by individual labor,
a right of property in it is acquired by such labor. The wild bird
in the air belongs to no one, but, when the fowler brings it to the
earth and takes it into his possession, it is his property. He has
reduced it to his control by his own labor, and the law of nature
and the law of society recognize his exclusive right to it. The
peari at the bottom of the sea belongs to no one, but the diver who
enters the water and brings it to light has property in the gem.
He has, by his own labor, reduced it to possession, and in all com-
munities and by all law his right to it is recognized. So the trap-

67t Magistrates v. Elphinstone, 3 58 People v. Truckee etc. Co., 116

Karnes' Decisions (Scotch), 331, Cal. 397. .

qaoting the passage above given from 60 Young v. Hichins, 6- Q. B. 606,

the Institutes of Justinian. 51 Eng. Com. L. 606.

^ Vinnins (quoted in Mason v. ^^ 2 Blackstone's Commentaries,

Hill, supra). Which is enacted in 14.
the California Civil Code, sec. 655.

236 THE LAW OF APPROPRIATION.

has no property in the water itself but a simple usufruct as t
along." This principle of a private right in the us^. '^^
guished from the substance itself is tak^n from the \9 % ^ ^
Eruct" in the Institutes,*^ and is well recognized \%i. *% ^
usufructuary right, or ** water right/' is the subst^ ^^ -^ "^^ ^
regard to flowing waters; 'is the right which is /V ^ ^'* \\^%.
the subject matter over which irrigation and ^ % % ^' ^^'^ ^ ^ ^

<. ^ ^ ^

made and litigation arises; and is real propei;'. ^ % ^^
The foundation of these rules being the ci^*^^. ^ ^^

!% ^

particles or aggregate drops of runninf "^^ ^ ^. ^ ^ -^

T in thpir Tifltiiml Annnap nrt^ not. r\r*a ^ ^.. ^ yiif ' ^ ^ . f^^

flow in their natural course, are not pr? "^ ^'^^ '^ *tci ^
ownership, but are in a class with the f\^ ^^ ^^ '^ ^fei **^ ^ ^
cannot be owned, we now follow the pa/C. ^t? % % ^^ \> -% •
stream into a ditch into which they b 4,^ ^^ ^^ ^ ^ '^-

Following the particles of the ^ii^'^/'\\/^ -^^ \ •'

ditch, there then has come a change^. \\^ \^ ^

stone says) of the liquid that lia»i\\\'* ^ ^ '^:^
like the change ^ regarding wi'^ ^ \y %/% ^ % ^
animals caged, fish caught '^^ ^i% %\^.% \ \ %\^
was regarded as property, real i a ^^ ^^%f %^ \.^ %^ "^ V

«»

^ ^

So with any specific partia ^ ^ ^ ^^\% ^ «^

control in a reservoir, dit^ \ A%\\^ ^ ^, and is

tide has been taken from %\ % ^^\ ^ —as ordinary

into private possession \^ % %^%^
In one case it is said 1» |, a \ 4 ^

x'lng Valley reservoirs

B3 Institutes of Jusv* Wi^' ' ^' ^^ necessary t» decide

tit. IV, V; Pande<}f ^ ^ ^ .as within a statute authoriz-

J^''pJ!'3875?8.^"'''''? '/i V -^ *^«^^ «>• commerce, and it was

' -v* Authorities «'♦ ^ v ?» AS hence actuaUy involved in* the

•w Suprdf sec. 6^ » ^

,.**o«- ^T*^^"^/}^!* P™K in » reservoir from faning rain,

?*' ^^L*^** S*i/1* ^1^ U- *' whatever may be the diffwrence of

o®/o ofl T ^LT^i * "*• ^^^®" opinion as to the ownership of nm-

373, 28 ij. e<l. « ' ^tes, quoted nmg waters"; but taken with his

48, quoted tnfi and Kent's previous remarks in Heyneman ▼.

57 At ci^l i f ^ gee. XXXV, Blake, where he made no such limi-

Mason v. H7 ,nfra, Part II, c. tation and which he refers to in the

*'No one hr game opinion, there can be no doubt

ter itself ' ^ ^^^ y^^ j^j^^ ^^j^ that he, himself, regarded the same as

portion m ^^ ' opinion just above ^ general principle of law, and the

stracted theory involved amply shows that it

Field in the Sehottler is.
jrred only to water caught

AKTIPICIAL WATERCOUItSES.

239

<^ ^

<:-^

'^^v

V.^v

^v.

^O^

''<^

"-^

^ '^ ^> -^

^<^

t the only California case where the point was
recent case®^ it was in effect held that
in a pipe is involved as distinguished
^^^mfnict in a stream, a justice of the
*^It has several times been held that
"wm into ditches and reservoirs
*'^, the personal property and
'if." The point was also*
^e water in a ditch or
Water in the pipes
''"he ownership is
artificial ap-
onal prop-
pliance is
a Reports as

^H^

•^.A

V^^>

4x <»A '^ % 'V % 'a <

<<^

in
abject
^ht into
in a trap,
^X of larceny
t , article ' ' Lar-
£ J. H. Beale.

to the foregoing, we
«nng eases where the
lA enundated olMer:

, urged that an appropriator
«aT does not become the owner
jD/b yery body of water as his per-
usal property, until he has acquired
the control of it in conduits or reser-
voirs of his own. The proposition as
stated is undoubtedly correct," etc.
BeattT, C. J., in Riverside Co. v. Gage,
89 GaL 418, 26 Pac. 889.

In one ease it is said that there
is a plain and substantial difference
between water in a ditch or reservoir
and water in a natural stream, and
says, regarding the former, that,
"being in defendant's possession and
under his control, had become his

^rty. ' ' Ball v. Kehl, 95
0 Pac. 780.
che purpose of this decision,
/ be admitted that water ac-
.ed by appropriation (to be sold
J miners and others) by means of
a ditch leading from a natural stream,
becomes, after it passes into the ditch,
the personal property of the appro-
priator. Nevertheless, although such
appropriator may be entitled to the
flow of all the stream undiminished,
the water in the stream above his
ditch is not his personal property.
.... The appropriator certainly does
not become the owner of the very
body of the water until he has ac-
quired control of it in conduits or
reservoirs created by art or applied
to the purpose of leading or storing
water by artificial means." Parln
Canal Co. v. Hoyt, 57 Cal. 44.

.... "After it has been diverted
from its original channel and con-
veyed elsewhere in pipes for distribu-
tion and sale, it loses its original char-
acter and becomes personal prop-
erty." Dunsmuir v. Port Angeles
Co., 24 Wash. 114, 63 Pac. 1095.

"When water has been separated
from the stream and stored where it
can be controlled by Uie owner, it
becomes personal property." Earn-
hain on Waters, 462.

The following is a partial list of the

23S

THE LAW OF APPROPRIATION.

S 154

per on the plains and the hunter in the north have a property in
the fnrs they have gathered, though the animals from which they
were taken roamed at large and belonged to no one. They have
added by their labor to the uses of man an article promoting his
comfort which, without that labor, would have been lost to him.
They have a right, therefore, to the furs, and every coui:t in Chris-
tendom would maintain it. So when the fisherman drags by his net
fish from the sea, he has a property in them, of which no one is
permitted to despoil him." And adds that when a water company
brings water to a city, it is the same as marketing grain or fruit
or coal.**

§ 154. Water in Artificial Watercourse is Peraonalty. — ^The in-
dividual particles of water so impressed by diversion into a ditch
and become private property possess none of the characteristics of
immovability that go with ideas of real estate; they are still al-
ways moving though privately possessed, having, as particles, the
characteristics of personal property. The analogy to caged ani-
mals, snared birds, or fish in a net shows well the point of view;
and the particles in the ditch, now private property, are person-
alty. This is the inevitable conclusion, and is accordingly the
law, and is so laid down by Judge Field in Heyneman v. Blake : ^
** Water, when collected in reservoirs or pipes, and thus separated
from the original source of supply, is personal property, and is
as much the subject of sale — an article of commerce — as ordinary
goods and merchandise. " ®*

This was said of the water in the same Spring Valley reservoirs
as those involved in the Schottler case. It was necessary to decide
whether the Spring Valley company waa within a statute authoriz-
ing the formation of corporations for trade or commerce, and it was
held that it was. The point was hence actually involved in^the

<Ki Field, J., arguendo in Spring
Valley W, W. v. Schottler, 110 U.
S. 373-375, 28 L. ed. at 183. Like-
wise Vattell and the Institutes, quoted
infra, part II, c. II, and Kent's
Commentaries, part V, see. XXXY,
p. 347; also quoted infra, Part II, c
II.

63 19 Cal. 579, cited by him with
approval in the opinion just above
quoted.

<M Judge Field in the Sehottler
case referred only to water caught

in a reservoir from faDing rain,
*' whatever may be the difference of
opinion as to the ownership of run-
ning waters"; but taken with his
previous remarks in Heyneman v.
Blake, where he made no such limi-
tation and which he refers to in the
same opinion, there can be no donbt
that he, himself, regarded the same as
a general principle of law, and the
theory involved amply shows that it
is.

§ 154

AltTIFICIAL WATERCOUItSES.

239

decision. This is not the only California case where the point was
actually decided. In a recent case^ it was in effect held that
where the corpus of water in a pipe is involved as distinguished
from a ''water right" or usufruct in a stream, a justice of the
peace has jurisdiction, saying: ''It has several times been held that
water diverted from a natural stream into ditches and reservoirs
IS, when so contained in said reservoirs, the personal property and
not the real estate of the owners thereof." The point was also'
actually decided in a Utah case holding the water in a ditch or
pipe taxable as personal property, saying: "Water in the pipes
of a distributing system is personal property. The ownership is
in the water itself."^ The water so taken into an artificial ap-
pliance is the subject of larceny at common law, as personal prop-
erty,*' and that water in an artificial watercourse or appliance is
personal property is the idea pervading the California Heports as
a whole, and a principle generally recognized.^

^ Hesperia etc. Co. v. (Hrdiner, 4
CaL App. 357, 88 Pac. 286, affirmed
in the supreme court by denying a
rehearing.

M Bear Lake Co. v. Ogden, 8 Utah,
494, 33 Pae. 135.

67 Rillon V. O'Brien, 11 Q. B. D.
21.

Wild animals are not property in
a natural state, and not the subject
of larceny; but when brought into
poflsession by being caught in a trap,
they are then the subject of larceny
as chattels. 25 Cyc. 17, article "Lar-
ceny," by Professor J. H. Beale.

^ In addition to the foregoing, we
add the foUowing cases where the
principle was enunciated obiter:

''It is urged that an appropriator
of water does not become the owner
of the very body of water as his per-
sonal properbr, until he has acquired
the control of it in conduits or reser-
voirs of his own. The proposition as
stated is undoubtedly correct," etc.
Beatty, C. J., in Riverside Co. v. Gage,
89 CaL 418, 26 Pac. 889.

In one case it is said that there
is a plain and substantial difference
between water in a ditch or reservoir
and water in a natural stream, and
SBVS, regarding the former, that,
''being in defendant's possession and
under his control, had become his

personal property." Ball v. Kehl, 95
Cal. 613, 30 Pac. 780.

"For the purpose of this decision,
it may be admitted that water ac-
quired by appropriation (to be sold
to miners and others) by means of
a ditch leading from a natural stream,
becomes, after it passes into the ditch,
the personal property of the appro-
priator. Nevertheless, although such
appropriator may be entitled to the
flow of all the stream undiminished,
the water in the stream above his
ditch is not his personal property.
.... The appropriator certainly does
not become the owner of the very
body of the water until he has ac-
quired control of it in conduits or
reservoirs created by art or applied
to the purpose of leading or storing
water by artificial means." Parks
Canal Co. v. Hoyt, 57 Cal. 44.

"When water has been separated
from the stream and stored where it
can be controlled by the owner, it
becomes personal property." Earn*
ham on Waters, 462.

The following is a partial list of the

240

THE LAW OP APPROPRIATION.

9 154a

§ 164a. Same. — It is important to appreciate the origin of this
rule, deduced from the fundamental civil law principle that the
corpus of the water in a natural stream is not property, real or
personal, in any i^ense of the word, which absolutely excludes the
common-law maxim, ^'Cujus est solum ejus esttisque ad caelum/*
from any application to the water of running streams. A oommon
argument is to overlook this starting point, and, failing to dis-
tinguish between the water and the water ri^t, to regard the
stream water as itself real property under the cujus est solum doc-
trine. An ai^ument is then started from a proposition that the
particles are realty, and the transition is regarded as one frc»n
the particles as realty to personalty by severance from the free-
hold, like fixtures or emblements; when in truth it is the transi-
tion from not property (neither real nor personal) to private prop-
erty, by severance from the natural stream; between particles
wandering ''wild" and particles ''captured" by diversion and un-
der private possession and control. The "cujus est solum'' argu-
ment, among other things, would apply to running streams the
ideas upon which the law of percolating water rests, for the corpus
of naturally percolating water is property — ^real property — as part
of the soil under the maxim, "Cujus est solum ejus est usque ad
caelum/' Not so, however, the flowing water in a natural stream,
the corpus of which is never property, real or personal, while in
the stream. The foundation of the law of watercourses, on the one
hand, and of the law of percolating water on the other, is en-
tirely diflEerent, owing to the very fact that the "cujus est solum*'
maxim does not apply to the water of a natural watercourse.®*

authorities: Kidd v. Laird, 15 Cal.
161, at 180, 76 Am. Dec. 472 {dic-
tum) ; HeTnemaa v. Blake, 19 Cal.
579; Nevada etc. Co. v. Kidd, 37
Cal. 282, at 326 (dictum) ; Parks v.
Hoyt, 57 Gal. 44 (semble) ; Green
V. Carotta, 72 Cal. 267, 13 Pac. 685
{dictum) ; BiYerside etc. y. Qage, 89
Cal. 410, 26 Pac. 780 (dictum) ; Me-
Guire v. Brown, 106 Cal. 660, 39 '
Pac. 1060, 30 L. R. A. 384; Duns-
niuir Y. Port Angeles etc. Co., 24
Wash. 104, 63 Pac. 1095; Boise City
ntc. Co. Y. Stewart, 10 Idaho, 38;
Salt Lake City v. Salt Lake etc. Co.,
24 Utah, 249, 67 Pac. 672 , 61 L.. R.
A. 648; Irrigation Co. v. Ogden City,

8 Utah, 494, 33 Pac. 135; Hesperia
L. & W. Co. Y. Gardiner, 4 Cal. App.
357, 88 Pac. 286; Famham on Wa-
ters, sec. 462; Gould on Waters, 3d
ed., sec. 236. Compare McCarter v.
Hudson etc. Co. (N. J.), 65 Atl.
489; Fallon (Ferens) y. O'Brien, 11
Q. B. D. 21.

69 Acton y. Blundell, 12 Mees. lb
W. 324, in establishing the law of
percolating water, said that percolat-
ing water "is not to be gOYemed by
the law which applies to riyers and
flowing streams, but that it rather
falls within that principle which giyes
to the owner of the soil all that lies
beneath his surface. * '

S 154b

ABTIPICIAL WATEBCOUESBS.

241

In a recent case^^ counsel for appellant water company made
just this mistake, and offered just such an argument to the Cali-
fornia court, and naturally the court O'ejected his contention that
an irrigation company sells personal property. An opinion was
rendered, however, which met him on his own line of reasoning
in showing the error of his conclusions, not having had attention
called to the error of his reasoning as well. The opinion was
rendered without distinguishing between the corpus of the water
-(which was not at all involved in the case) and the usufructuary
water right (which alone was involved), and, while holding the
water right to be real property, used the words ** water" and
'* water right" without distinction, as being both real property.
A rehearing having been secured by appellant on an entirely differ-
ent point, appellant again urged his argument that the case dealt
with personal property. On behalf of respondent in reply, the
writer of this book then for the first time, and very briefly, pre-
sented the distinction between the water and the water right in
this respect, and solely to show that appellant's argument was
foreign to the case, because the case dealt with the water right.
The judgment for respondent was again* affirmed, and this point,
because of its immateriality, received no further attention on the
rehearing, so that the original opinion remained unchanged in this
regard. This case, consequently, cannot be taken against the fore-
going authorities, which were not before the court in this light
when the opinion was rendered, and were finally presented only to
show their inmiateriality in a case dealing with au usufructuary right
(which of course, is real property), as hereafter again mentioned.^*

§ 164b. Same. — ^With regard to the practical application of
this principle that the corpus of water severed from the stream in
an artificial conduit or appliance is personal property, the only dif-

70 Stanislaus W. Co. v. Bachman
(Cal. Sup.), 93 Pac. 858.

71 EzpressionB are used in the opin-
ion that the water of nmning streams
18 on the same footing as percolating
water; that mnning water is not dif-
ferent from other material substances
composing a part of the earth (com-
pare tiie authorities in the last sec-
tion), and that the particles of wa-
ter of a natural stream are real prop-
ertj (compare Kidd v. Laird, »upra) ;

Water Bights— 16

and the opinion concludes that water
does not become personalty on sever-
ance from the stream, but only when
delivered from pipes to the consumer
in a portable receptacle, and disap-
proves Heyneman v. Blake (other than
which no authorities dealing^ with the
corpus of water as distinguished from
the ri|rht to its use are cited; the
authorities cited being aU cases where
the right of ttse is held realty).

242 THE LAW OF APPROPRIATION. § 155

ficulty is the danger that it may be given undue importance. The
Stanislaus case is simply a protest against giving it much im-
portance ; and the point is truly of little practical importance. Its
value lies mostly in rounding out and thus re-enforcing the exceed-
ingly important fundamental idea that the water in the stream it-
self is not property at all, and that one may have only the strictly
usufructuary right to use the stream; as merely one illustration
of the fundamental distinction between the water itself and the
property right to have its continual flow and use. Were the prin-
ciple to be, to any great extent, so applied as to regard cases as
based upon property rights in running water as a substance it would
be a perversion, for its true force lies in showing the opposite —
that controversies must, as a rule, be decided with regard to the
use of the water, and not its corpus. As was said by Judge Cope
in Kidd v. Laird:''*

**This court has never departed from the doctrine that running
water, so long as it continues to flow in its natural course, is not,
and cannot be made, the subject of private ownership. A right
may be acquired to its use, which will be regarded and protected
as property; but it has been distinctly declared in several cases
that this right carries with it no specific property in the water it-
self. We are not called upon [and courts seldom are] to deter-
mine the character of the property which the owner of a ditch has
in the water actually diverted by and flowing in his ditch. With
reference to such water, his power of control and right of enjoy-
ment are exclusive and absolute, and it is a matter of little practical
importance whether, in a strict' legal sense, it be or be not private
property. In regard to the water of the stream, his rights [an
appropriator's], like those of a riparian owner, are strictly iisufruC'
tuary, and the rules of law by which they are governed are per-
fectly well settled."

§ 166. Same— As Affecting Water Supply Oontracts. — Where
a contract has in view a natural stream, only the water right can be
its subject matter as that alone constitutes private property. But
where it concerns water in a ditch or pipe, etc., the corpus of water
therein is now property which may also be the subject of contract
It becomes a question of construction — of intention — whether, in

72 15 Cal. 161 (italics ours).

S 155

ARTIFICIAL WATERCOURSES.

243

the latter case, the parties contracted with a view to the substance
itself, or with a view to the water right in the stream from which
the supply is drawn.

A contract with a house supply company is the typical case where
the substance itself is the subject of the contract ; and such a case
is one of the sale of personal property J*^

But the situation in regard to irrigation contracts is different.
Granting that water in a reservoir, pipe, ditch, or other artificial
appliance is personal property, yet irrigation and similar contracts
and litigation deal with the water right, and not with any iden-
tifiable or specific particles of liquid or **very body of water" in the
ditch. Title to any specific particle or particles of the liquid sel-
dom becomes the subject of irrigation or similar litigation or con-
tract. Irrigators invariably meati to contract concerning the water
right, and seldom quarrel about the title to any specific particles
of water that could be barreled and marked and set aside and
labeled, **This is the subject of the litigation." Such a situation
arises only in exceptional cases, as where one is prosecuted for
larceny in taking water from a ditch or pipe.*^^ There, title to the
ver>' particles stolen is involved, and larceny of personal property
results. But that is rare, indeed.^ The situation in irrigation is
almost invariably a dispute over the water right.

If one artificially manufactures water from oxygen and hydrogen,
and leads if in a ditch from the f actor>' to a bottling works, and
contracts with me about the water in the ditch, it is contract con-
cerning personalty; in that case there is no ** water right" at all.
If one has a spring of medicinal waters and leads the water from the
spring to a reservoir preparatory to bottling, and contracts to sell
one reservoir full, it would be a sale of personal property. . Like-
wise if he sells me so many gallons from the reservoir measured by
a meter. The very particles sold could be marked and set aside
(as, by closing the reservoir and coloring them red, for example).
The very body of water in the reservoir at time of purchase may

73 Heyneman v. Blake, 19 Cal. 595.
Field, J., quoted supra, sec. 154;
Spring Valley W. W. v. Schottler,
110 U. S. 347, 373, 28 L. ed. 173,
4 Sup. Ct. Bep. 48; Hesperia etc. Co.
V. Gardiner, 4 Cal. App. 357, 88
Pao. 286. In Caro there v. Phil. Co.,
118 Pfe. St. 468, 12 Atl. 314, the court
compares gas companies (with which

the case dealt) with city supply water
companies, and says : ' ' The same is
also true of water companies. They
produce, store and supply to consum-
ers water. Transportation by means
of pipes is the means of delivery, and
is a mere incident of the business. * '
74 Fallon V. O'Brien, 11 Q. B. D.
21.

244

THE LAW OF APPROPRIATION.

S 155

have peculiar mineral properties not again occurring, so that the
purchaser desires just that very water. But if he sells the right
to have the mineral water flow in the spring, he contracts con-
cerning the water right, concerning realty and not personalty.
The Spring Valley company '^ sells the householder so many gal-
lons or cubic feet of liquid measured by a meter; it does not pro-
fess to grant a perpetual flow from a natural stream.

To give security to irrigators, irrigation contracts are generally
viewed as having for their subject matter the usufructuary right
in the stream through the intermediate agency of the ditch, there-
by making them not personal covenants or contracts concerning
personalty, but real covenants, or contracts affecting the ditch and
the water rigkt in the stream from which the ditch heads. A con-
tract granting a right to take water from a ditch for irrigation is
held to grant a servitude upon real property; upon the canal and
water rights of the grantor.'^® And the arid States have settled it
as a fixed rule aside from contract that one who has a right to
take water from a company's ditch is an appropriator from the
natural stream through the intermediate agency of the ditch.""
Rights for irrigation in the flow in a ditch thus relate back to the
rights in the stream, and contracts refer back to the same subject
matter when concerning irrigation ; though the .distinction between
the corpus of water and its use and flow would still prevail in such
matters as larceny from a ditcji, or contracts for house supply in
cities, as previously mentioned.

The words of the contract in an irrigation case, such as the Stan-
islaus case, are conclusive that the contract concerns the uisuf ruc-
tuary water right and does not concern the corptis in the ditch.
The first paragraph of the contract in the Stanislaus case stated.
"That the party of the first part agrees to furnish .... from the
Stanislaus River .... a flow of water sufficient to fully irrigate"
the described land. By another paragraph, the contract was made

75 Hejneman v. Blake; Spring Val-
ley W, W. V. Scbottler; the same
would be true of a house supply com-
pany in San Bernardino as well
(which was evidently the Hesperia
case, aupra).

76 Dorris V. Sullivan, 90 Cal. 279,
27 Pac. 216; Stanislaus V^ater Co. v.
Bachman (Cal. Sup., Jan. 23, 1908),
93 Pac. 858; Pasadena v. Betsadena

Co. (Cal. Sup.), 93 Pac. 490; Gra-
ham Y. Pasadena (Cal. Sup.), 93 Pac
498; Orcutt v. Pasadena (Cal. Sup.),
93 Pac. 497; Fudickar v. East Biver-
side Co., 109 Cal. 29, 41 Pac. 1024;
Farmers' etc. Co. v. New Hampohire
etc. Co. (Colo.), 92 Pac. 290. See
infra, sec. 422.

77 Infra, sec. 423, where the cases
are cited at length.

§ 155

ABTIFICIAL WATERCX)UBSES.

245

perpetual. In another paragraph the water company ^'grants ....
the right to use water .... for domestic purposes.*' .The con-
tract thus gives the grantee a perpetual How of water and the
right of use from the Stanislaus River. The company went even
further. It agreed to transport and carry the water ** through its
canal from the Stanislaus River to the party of the second part."
This was the construction given by the court, sa3ring: **The effect
of the agreement was to confer upon Threllf all '^^ a right to such
portion of the water flowing from the Stanislaus River through the
canal of the company as shoidd be required for the full irrigation
of the land, and to have the canal and ditch used for the purpose
of conducting the same to the land." It was thus a contract for
flow and use from a natural stream (a usufruct) and not a con-
tract concerning the corpus or particles (even though they be per-
sonalty), such as a contract for 9l single ditchful (or many ditch-
fuls) of water would have been. It enforces the principle in the
statutes providing that "Whenever any corporation furnishes water
to irrigate lands, .... the right to the flow and use of said water
is and shall remain a perpetual easement to the land."*^

The Stanislaus case, to give security to irrigators, lays down the
rule for California that irrigation contracts with irrigation com-
panies have for their subject matter the usufruct in the stream
(and not the water itself) through the intermediate iagency of the
ditch, affecting the water right in the stream from which the ditch
heads. Rights for irrigation through a company's canal thus re-
late back to the rights in the stream, and bind the water right in •
the natural flow. This is a rule already well settled in the arid
States.*^

So far as the water in the canal is personalty, it is personalty of
the consumers as well as of the company, the company being chiefly
the agent of the consumers to make the diversion and carry the

T8 Grantor of the defendant eon-
Bumer.

TO Oal. Civ. Code, sec. 552; Cal.
8tat8. 1885, p. 95, sec. 11^, as
amended Stats. 1897, p. 49.

80 Infra, see. 423 et seq.; Wheeler
V. Irrigation Co. (Colo.), 17 Pac. 487;
Combs y. Ditch Co., 17 Colo. 146, 28
Pac. 966; Wyatt v. Larrimer Co.
(Colo.), 33 Pac. 144; Hnrd v. Boise
etc. Co. (Idaho), 76 Pac. 331; Gould

V, Maricopa etc. Co. (Ariz.), 76 Pac.
598. In the Wyatt case it is said:
''The consumer under the ditch pos-
sesses a like property. He is an ap-
propriator from the natural stream
through the intermediate agency of
the ditch, and has the right to have
the <;^uantity of water so appropriated
flow m the natural stream and through
the ditch for his use.''

246 THE LAW OF APPROPRIATION. §} 155a, 156

water. The company is, in the decisions of the arid States, uni-
versally denominated simply **a carrier."

That the subject matter of irripration contracts for supply to be
drawn from a ditch relates back and becomes the use and flow of the
natural stream from which the ditch heads has always been the
attitude of the California legislature, having enacted,^ ** Whenever
any corporation fumishea water to irrigate lands .... the right
to the flow and use of said water is and shall remain a perpetual
easement to the land/' etc., and®^ speaks of contracts with com-
panies for the ''sale or rental of easements and servitudes of the
right to the flow and use of water"; thereby regarding such con-
tracts as having for their subject matter an incorporeal heredita-
ment, the water right in the natural stream and not the corpus of
water in the ditch.

§ 166a. Same — Ab Applied to Deviolopment of Water — Since
the usufruct in the stream, as distinguished from the corpus of the
water, is the basis of rights in the natural stream, artificial incre-
ments in the stream produced by the labor of man do not neces-
sarily become subject to such usufruct of other parties. Where the
flow of a stream is artificially increased by tunnels, for example,
such artificial increment is new water, and the corpus^ being pro-
duced and controlled by its producer, is his property. If he al-
lows it to enter and increase the stream with the intent, not to
abandon it, but to take it out again at some lower point, he may
do so though there be other claimants below him. Having become
his property by artificial development and brought under his pos-
session and control or ** captured," it may, in such a case, be ** re-
captured," to use an expression of Judge Field's. It is essential,
however, that the waters thus taken out be new waters artificially
brought into the stream by the labor of man, and not waters that
would have reached the channel naturally and have formed part of
the natural flow anyway in the absence of such labor. Authorities
are cited in a later section in discussing the subject of ** recap-
ture. "^^

§ 166. The Law of Natural Waterconrses does not Apply to
Water in Artificial Watercourses. — The law of the water in an

81 Civ. Code, sec. 552. ^ Infra, sec, 234.

82 In see. 11 Vj of the Act of 1885,
page 95, Am. 1897, p. 49.

i 156

ABTIFlCIAL WATEBCOUiSES.

247

artificial watercourse deals with the corpus of water and not with a
water right. As the water in a ditch is private property, owned
by the ditch owner as completely as other private property, the
landowner through whose land the ditch runs can claim no riparian
rights therein.®* Nor is it subject to appropriation by others.®^
The law of appropriation applies only to natural streams.^ A use
by another of waste water discharged from one's works or appliances
can give rise to neither an appropriation nor to a right by prescrip-
tion, or estoppel, to have the discharge kept up, even though ex-
pensive ditches and flumes were built for the purpose of utilizing
such waste.^ The claim to a continuance of such use by estoppel
is frequently made, on the ground that the owner allowing the dis-
charge knew of the expectation of the person receiving the dis-
charge, and of the expense incurred in putting it to use. But in a
leading case ^ the court says on this point : * * We have been cited
to no authority, and know of none, that holds that the bare fact
that the ditch was constructed with the knowledge of the plaintiffs
and their grantors, and without objection on their part, though at
heavy cost, is sufiScient to operate an estoppel. There must be some

M Creighton v. Kaweah Ck)., 67 Cal.
221, 7 Pac. 658; Green v. Garotta, 72
Cal. 267, 13 Pac. 685; Arkwright v.
GiU, 5 Mees. & W. 226. Ck)mpare the
French law as given in ''Droit Civile
Francais'' bj Aubrey & Rau, 4th
ed., vol. Ill, p. 48: "Proprietors
&<m-riparian to the natural flow of the
water are not allowed, as riparian
to an artificial canal leading from the
stream, to demand that the canal
owner permit them to take the water
thus derived" ("Lea propri^taires
non riverains d 'un cours d 'eau nature!
ne sont pas admis, comme riverains,
d 'un canal artificiel d6riv6 de ce cours
d'ean, k demander que le propri^taire
du canal leur trandmette les eaux ainsi
dftrivees ' *) .

86 Cases cited infra. Compare,
however, Oklahoma Stats. 1905, p. 224,
see. 45; South Dakota Stats. 1905,
p. 201, sec. 56; M. A. S., 2269, pro-
viding for the appropriation of waste
waters.

86 Helm, C. J., in Farmers' Co. v.*
Southworth, 13 Colo. Ill, 21 Pac.
1029, 4 L. R. A. 767.

Water in an artificial watercourse
is not, aside from statute, the sub-

ject of appropriation, and quaere
whether a statute can make it other-
wise. Dickey v. Maddux (Wish.), 93
Pac. 1090.

87 Dougherty v. Creary, 30 Cal.
290, 89 Am. Dec. 116; Stone v. Bum-
pus, 40 Cal. 428; Hanson v. Me-
Cue, 42 Cal. 303, 10 Am. Rep. 299;
Correa v. Frietas, 42 Cal. 339; Stock-
ton V. Riverside etc. Co., 64 Cal. 57,
at 59, 28 Pac. 116; Anaheim etc. Co.
V. Serai- Tropic etc. Co., 64 Cal. 185,
30 Pac. 623; Lux v. Haggin, 69 Cal.
255, at 266, 10 Pac. 674^ disapprov-
ing Parke v. Kilham, 8 Cal. 77, 68
Am. Dec. 310, on this point; Lake-
side Ditch Co. V. Crane, 80 Cal. 181,
22 Pac. 76; Hargrave v. Cook, 108
Cal. 72, 41 Pac. 18. See Yale on
Mining Claims and Water Rights, 201 ;
Cardelli v. Comstock Co., 26 Nev. 284,
66 Pac. 950; Fairplay etc. Co. v.
Weston, 29 Colo. 125, 93 Am. St.
Rep. 719, note, 67 Pac. 160; Burk-
hart V. Meiburg, 37 Colo. 187, 86 Pac.
99, 6 L. R. A., N. 8., 1104; Atkin-
son V. Washington etc. Co. (Wash.),
86 Pac. 1123.

88 Stockman v. Riverside etc. Co.,
64 Cal. 57, at 59, 28 Pac. 116.

248 THE LAW OF APPROPRIATION. S 156

degree of turpitude in the conduct of a party before a court of
equity will estop him from the assertion of his title — ^the effect
of the estoppel being to forfeit his property, and transfer its en-
joyment to another."^

Lower user of discharged waste from a ditch or tunnel, etc.,
gives ^o permanent rights,^ and to this effect some quotations an^
here given, including cases where the waste found its way to the
lower claimants by percolation.

**The plaintiffs could acquire no other than a mere privilege or
right to the use of the waste water, or, at most, but a secondary
and subordinate right to that of the first appropriators, and only
such as was liable to be determined by their action at any time,
unless the water had been turned back into the original chan-
nel "•I In Hanson v. McCue:*^ **This ditch, in its course

over Hanson's land, leaked water in such quantities that it col-
lected into a stream, which Hanson used for irrigation. This was
the only foundation for the right which Hanson had or claimed to
the water. The court properly held that he had no right to the
waste water, and that McCue was not bound to continue to main-
tain the artificial stream for Hanson's benefit, but could, by any
meani^e chose, change the use of the spring and the course of the
ditch."

Waste water soaking from the land of another after irrigation
cannot be appropriated, and may be intercepted and taken by such
original irrigator, and conducted elsewhere, though parties there-
tofore using the waste are deprived thereof. In one case ^ plain-
tiff had dug a ditch along the boundary of her land, thereby col-
lecting the seepage from the irrigation of her neighbor above.
The latter dug a parallel ditch on his own land, collecting the seep-
age for himself and using it elsewhere. The court says: '"The
plaintiff certainly has acquired no vested right to compel the de-
fendants to apply the waters, the right to the use of which they

89 Citing BoggB v.. Merced Mio. ^i Woolman v. Garringer, 1 Mont.

Ck)., 14 Gal. 368. This is in accord 544.

with the leading English case of Ark- ^ Says Shaw, J., in Kat« v. Wal-

wright V. Gell, 5 Mees. & W. 226. kinshaw, 141 Cal 116, 99 Am. St.

00 Wimer v. Simmons, 27 Or. 1, Bep. 35, 70 Pac 663, 74 Pac. 766, 64

50 Am. St. Bep. 685. 39 Pac. 6; L. B. A. 236.

Crescent etc. Co. v. Silver King etc. ^ Burkhart v. Meiberg, 37 Colo.

Co., 17 Utah, 444, 70 Am. St. Bep. 187, 86 Pac. 98, 6 L. B. A., N. S.,

810, 54 Pac. 244; Smith etc. Co. v. 1104.
Colorado etc. Co., 34 Colo. 485, 82
Pac. 940, 3 L. B. A., N. S., 1H8.

§ 156

ABTIFICIAL WATBBCOUE8BS.

249

own, in such a way as that some of it will not soak into their own
ground, but escape and pass from the surface on to her lands.
The defendants have the right to chigige the place and manner of
use, or reduce the quantity applied to their lands, so that no water

whatever will escape and reach the lands of plaintiff The

plaintiff does not assert the right to the use of this water by virtue
of an appropriation made from the same stream, or any of its
tributaries, which are the source of defendants' supply. She can-
not, therefore, like a prior or junior appropriator of water from
the same stream, insist on the economical use of the defendants

of their appropriation By mere acquiescence on their part

to plaintiff's use after waste water has passed from their lands
they have not estopped themselves thereafter to intercept and make
beneficial use of it before it escapes from their control."^

The point of view is that the water issuing from the discharge
must be considered as a corpus, so that no question of a continu-
ous usufructuary right can be involved. So much of the corpus
as is discharged^ may be taken by the man to whom it comes, but
receiving it gives him no right in any of the substance that has
not yet come to him. He deals with the corpus of water and not
with its use and flow.

The distinction between the artificial watercourse (and the water
in it) and the usufruct or water right in the natural stream must
be kept in mind. Those who claim as appropriators of the natural
stream, as in the usual case of successive appropriators, have a

M A recent writer (Mr. MUls, of
Denver, Colorado, in MiUs' Irrigation
Manual, p. 53) sajs: ''An appropri-
ator of waste water aequires a right
only to whatever water flows from
the diteh or canal through which the
lint use 18 made, after t& wants and
necessities of the appropriators un-
der such diteh or canal have been
sapplied, and such appropriation does
not earrj a right to any specific quan-
tity of water, nor the right to inter-
fere with the water flowinn^ in such
ditch or canal, and the appropriators
under such diteh or canal are under
no obligation to permit any specific
qnantity of water to be discharged
as waste for his benefit. ' '

In an English case it is said : " If
the stream flows at its source by the
opeiation of nature — that is, if it is

a natural stream — ^the rights and lia-
bilities of the party owning the land
at its source are the same as those
of the proprietors in the course below.
If the stream flows at its source by
the operation of man — that is, if it
is an artificial stream— -the owner of
the land at its source or the com-
mencement of the flow is not subject
to any rights or liabilities toward any
other person, in respect of the water
of that stream. The owner of such
land may make himself liable to duties
in respect of such water by grant or
contract; but the jparty claiming a
right to compel performance of those
duties must give evidence of such
right beyond the mere suffering by
him of the servitude of receiving such
water." Gaved v. Martyn, 19 Com.
B., N. S., 759, 760.

250 THE LAW OF APPROPRIATION. } 157

usufructuary ri^ht, and are fully protected. The rule that lower
claimants can acquire no rights in the discharge applies only to
artificial watercourses. The ^matter is again discussed in dealing
with abandonment^

A right to continuance may be acquired by adverse use of
the ditch itself.**

§ 167. Same — ^Drainage Water. — While the foregoing was ad-
dressed more directly to water discharged as waste from a ditch
or flume or similar structure, yet the authorities given also in-
volve water escaping by seepage, and the principle is entirely the
same. No question of a continuous water right is involved (aside
from prescription or coptract) except where rights can be asserted
directly or indirectly in a natural stream.

• The discharge of drainage water through a tunnel stands on the
same footing, with the additional strength that, while the discharge
considered in the last section was not of water artificially collected
(but, instead, originally existing in a natural body and diverted
therefrom) — here the water is itself artificially collected, as well
as artificially confined. The question arises in cases of water
pumped from a mine and run off in a ditch. The leading case
in which this situation is considered is the English case of Ark-
wright V. Gell,®^ in which the opinion was by Baron Parke, to
whose opinions the law owes much to the clear presentation of the
distinction between the corpus of water and a usufructuary right.
He says the stream coming from the mine is not governed by the
law of natural watercourses, and proceeds:

**This was an artificial watercourse, and the sole object for which
it was made was to get rid of a nuisance to the mines, and to
enable their proprietors to get the ores which lay within the min-
eral field drained by it ; and the flow of water through that chan-
nel was, from the very nature of the case, of a temporary char-
acter, having its contifiuance only whilst the convenience of the
mine owners required it, and in ordinary course it would most
probably cease when the mineral ore above its level should have been
exhausted." As to the lo^er claimant who received and put to

^ Infra, sec. 233. chard and Weeks on Mining Claims

00 Infra, sec. 240, discu88in|r adverse and Water Rights, p. 822 ; Arkwright

use. YalQ on Mining Claims and v. Oell, 5 Mees. & W. 226.

Water Rights, p. 202 et seq.; Blan- w 5 Mees. & W. 226.

S 157 ABTIPICIAIi WATEBCOUBSES. 251

use this water/ "He would only have a right to use it, for any pur-
pose to which it was applicable, so long as it continued there."
Time would raise no presumption of a grant nor found any claim
to a continuance of the discharge; {or ''the mine owner could not
bring any action against the person using the water," so as to
make him stop using it ; and consequently such use did not in any
way concern or bind the mine owner. '*We therefore think that
the plaintiffs never acquired any right to have the stream of water
continued in its former channel/'^

A modern illustration, entirely to the same effect, arose out of
the waters flowing from the Sutro tunnel, below Virginia City,
Nevada. Plaintiff used waste water that was being pumped from
the Comstock mines, and discharged in large volume through the
Sutro tiumel, which has been built to drain those mines. This
discharge, the court held, was an artificial stream, and not* subject
to appropriation by plaintiff so as to give any right against the tun-
nel company. The court put this case: **One further illustration:
A, by artificial means, fills a tank or reservoir on his own land to-
day, and permits the waters to flow down to B's land and irrigate
B's land. Probably A's conduct gives to B the right to that
water — that individual tank or reservoir full. But suppose A fills
the same tank or reservoir to-morrow, but chooses to use this water —
this tank or reservoir full — ^to irrigate his own land; what right
has B to this last water? We think none, and it makes no material
difference if such a state of things were kept up for a long num-
ber of years. In such case, time would raise no presumption of
prrant, and A could at any time stop the production of such arti-
ficial and temporary stream ; and he could also, at any time, if he
continued the production of such stream, put the waters thereof
to his own use." ^ In this case, counsel argued **That such waters
are just as Qbsoliately the property of the corporation defendant
as if such water were manufactured each day from oxygen and
hydrogen by the corporation defendant.*'*®®

A distinction may, perhaps, be made between such tunnel water
and an artesian well. The water from an artesian well, though

w Accord Wood v. W^and, 3 Ex. 244; Fairplaj etc. Co. v. Weston, 29

775. Colo. 125, 67 Pac. 160.

» Cardelli v. Comstock T. Co., 26 lOO As to the right of the tunnel

Nev. 284, 66 Pac. 950. Accord as owner to himself u^ such water, see

to mine tunnel waters, Crescent etc. infra, sec. 234, Recapture. See, also,

Co. V. Silver King etc. Co., 17 Utah, Underground Water.
444, 70 Am. St. Rep. 810, 54 Pac.

252 THE LAW OF APPROPRIATION. 8 158

artificially started, thereafter flows naturally. It has been held
that where an artesian well was drilled on an oil claim on public
land, and both the well and claim were then abandoned, the flow
from the well was a stream to. which the law of appropriation ap-
plied thereafter. ^^^ Another case also distinguished between ar*
tesian wells flowing naturally and wells requiring pumping.^^

§ 168. Same— Drainage into a Natural Stream.— This rule
above considered deals only with waste discharged from an arti-
ficial source or artificial watercourse. Rights in the surplus flow
of a natural stream stand on a different footing, as has been
discussed under the question of successive appropriators ; and
likewise percolations from a natural source follow a different
rule.^^

Between the case of lower claimants to the natural stream and
the case of lower claimants to the discharge from a ditch, is the
intermediate case of lower claimants on a natural stream into which
the waste from a ditch or tunnel or from irrigation or other ar-
tificial source has nlade its way. The very particles of water thus
added to the stream (without intent to recapture) ^^ certainly be-
long to the stream claimants. But have they any permanent right
to such increment of the stream so as to limit the dominion of the
ditch owner over it, and so as to constitute a continuous right to
have the discharge into the stream kept up t The/ shoidd have,
as the effect is the same though the increment were a natural tribu-
tary. We are here returned to the presence of a usufructuary
right in the natural stream, and the corpus of the water is no longer
the sole consideration.

It is generally held that the lower stream claimants have a right
to the continuance of the discharge into the stream, as a part of
their usufructuary right in the stream itself.

Waste coming to a natural stream belongs to the appropriators
thereon, whether it comes by percolation, surface or subterranean
flow.^^ Discharge after use belongs to appropriators below on the

101 Wolfskin V. Smith, 5 Cal. App. ^^ La Jara etc. Co. v. Hansen, 35
175, 89 Pac. 1001. Colo. 105, 83 Pac. 645; Water Supply

ift5 v^ «-- *« i?io», /r««i A»^\ oi & Storage Co. v. Larimer etc. Beaer-

102 Ex parte Elam (Cal. App.), 91 ^^^ ^^^ ^^^ gy,^^^ 53 p^ 3^^.

mc. »ii. (^^^^ ^ Ashley, 34 Colo. 285, 82 Pac.

108 Infra, Piirt III. 588; McCleUan v. Hurdie, 3 Colo.

104 Infra, sec. 233. App. 434, 33 Pac. 280.

§ 159

ABTIFICIAL WATEBCOUB8ES.

253

natural stream. The upper owner cannot sell it to others to the
injury of those below.*^ An artificial watercourse emptying into
a stream belongs to lower claimants.^^ Water from a tunnel emp-
tying into a stream belongs to the stream appropriators as against
all who are not privy to those who drove the tunnel.*^ Waste
returned to a stream is the same as a natural tributary.^^

§ 169. Colorado ^^® provides that ditches for utilizing waste,
seepage or spring waters shall be governed by the same laws of
priority as govern those for utilizing running streams, provided
that the landowner on whose land the seepage or spring arises has
the prior right thereto '4f capable of being used upon his land."
It is held that this does not apply after the water reaches a stream,
though the stream is enriched by the waste seepage from irrigation.
The law of appropriation governs, and not that of artificial water-
courses.^^^ Where water is appropriated for the purpose of fur-
nishing power to a mill and after its use in the mill is permitted
to fiow, undiminished, back into the natural stream, it becomes sub-
ject to another appropriation, and when so appropriated the mill
appropriator cannot change the character of use or place of diver-
sion in such manner as to injure or deprive the latter appropriator
below the mill of his use of the water.^^^ Always, however, saving
the right where there is an intent to recapture, as elsewhere dis-
coased."®

106 Creek v. Bozeman Water Co.,
15 Mont. 121, 38 Pae. ^59.

lOT Sehuls V. Sweeny, 19 Nev. 359,
3 Am. St. Bep. 888, 11 Pac. 253.
And see WoUman v. Garringer, 1
Mont. 544.

!<* Farmers' Union etc. Co. v. Rio
Grande etc. Co., 37 Colo. 512, 86
Pac. 1042.

lOB Water Supply Co. v. Larimer
etc. Co., 25 Colo. 87, 53 Pac. 386.
And see Schneider v. Schneider, 36
Colo. 518, 86 Pac. 348. Other cases
are cited elsewhere herein in discuss-
ing this same i>oint. Infra, sees. 184,
233.

110 Sess. Laws 1889, p. 215, sec. 1.

HI La Jara etc. Co. v. Hansen, 35
Colo. 105, 83 Pac. 644. Accord, see
Sonthem California etc. Co. v. Wil-
shire, 144 Cal. 68, 77 Pac. 767.

112 Last Chance etc. Co. v. Bunker
Hill etc. Co. (C. C. Idaho), 49 Fed.

430; Mills' Irrigation Manual, p. 70,
citing Cache La Poudre etc. Co. v.
Water Supply Co., 25 Colo. 161, 71
Am. St. Bep. 131, 53 Pac. 331, 46 L.
B. A. 175. See Trambley v. Luter-
man, 6 N. Mex. 15, 27 Pac. 312;
Gassert v. Noyes, 18 Mont. 216, 44
Pac. 959. The following is from a
Mexican mining concession granted to
a company of which the writer is sec-
retary: ''The waters that issue from
the mining properties of the company
on account of the works that it may
execute and that this company may
wish or desire to make use of, carry-,
ing the same to some other of their
other mining properties or reduction
works, can only be utilized by it so
long as it takes them before they fall
into the bed of any creeJc that con-
tains water with aenHtude.**
113 Infra, sec. 234.

;)

254

THE LAW OF APPROPRIATION.

fi 160

C. USE OF ARTIFICIAL WATERCOURSE.

§ 160. Ck>ntract8 Ooneerning Ditches. — ^There is no limitation
upon the right to deal with or dispose of this kind of property,
and the usual law of contracts applies. A covenant to allow a
neighbor to take the water from a stream and build two ditches
across one's land runs with the land.""* A license for a pipe-line
does not cover a defective pipe-line."* A sale of a ditch may carry
with it a water right as an appurtenance ; ^^^ but a grant may be
made of a canal reserving th'e water right ; *" and a water rigrbt
will not always pass as an appurtenance with the grant of a ditch
right if such was not the intent."'' They may be sold separately.*'*
Ditches and water rights are subject to mechanics' liens,*** or ex-
ecution,*^ or mortgage.^^ A parol sale of a ditch, with or with-
out a water right, would seem to be effectual if the vendee took
possession.*^ In equity, parol licenses and contracts are sometimes
given an effect which they would not have at law, as to which more
hereafter.

A grant of right of way for a pipe-line without specifying dimen-
sions means a reasonable width,*^* and becomes fixed when q definite
one is thereunder located and used.*^ An express grant of a right
of way to lay pipes without specifying number and size becomes
fixed by laying a ten-inch pipe with the acquiescence of both par-
ties, and more or larger pipes cannot be laid thereafter in the ab-
sence of special mktter in the instrument of grant providing for
such change.^^ Under a license to enter on plaintiff's land to

114 Weill V. Baldwin, 64 Cal. 476,
2 Pac. 249.

115 Graham v. Redlands etc. Co., 3
(^al. App. 732, 86 Pac. 989.

116 Infra, sees. 152, 225.

117 Rogers v. Riv'ersido etc. Co., 132
Oftl. 9, 64 Pac. 95.

118 Zimmler v. San Luis etc. Co., 57
Cal. 221.

119 Miller v. Vaughan, 8 Or. 333,
and antCf sees. 64, 152.

120 Reynolds v. Hosmer, 51 (^al.
205; Bear Lake etc. Co. v. Garland,
164 U. 8. 1, 41 L. ed. 327, 17 Sjip.
Ct. Rep. 7; Creer v. Cache Valley
Co., 4 Idaho, 280, 95 Am. St. Rep.
63, 38 Pac. 653 ; Jar\'i8 v. State Bank,

.22 Colo. 309, 55 Am. St. Rep. 129,
45 Pac. 505.

121 Gleason v. Hill, 65 Cal. 17, 2
Pac. 413.

122 Mitchell V. Canal Co., 75 Cal.
464; Cave v. Crafts, 53 Cal. 135.

123 Infra, sec. 228.

134 Everet etc. Co. v. Powers, 37
VSTash. 143, 79 Pac. 617.

125 Winslow V. Vallejo, 148 Cal.
725, 113 Am. St. Rep. 342, 84 Pac.
191, 5 L. R. A., N. S., 851; Kern
etc. Co. V. Bakersfield, 151 Cal. 403,
90 Pac. 1052.

126 Winslow V. City of Valleic 148
Cal. 723, 113 Am. St. Rep. 342, 84
Pac. 191, 5 L. R. A., N. S., 851
(Sloss, J.).

f 161 ARTIFICIAL WATEBCX3UBSE8. 255

construct a pipe-line of a specified capacity of good substantial ma-
terial and workmanship for the conveyance of water to the li-
censeeB' premises, the latter were not entitled to enter on the land
to construct a pipe-line which was substantially defective in char-
acter and likely to be productive of unnecessary damage to. plain-

tiff.^27

§ 161. Joint Use of Ditch. — Ownership of an easement over
another ''s land is not necessarily inconsistent with a like use, by the
landowner, of the servient teneiAent, so long a^ such use is sub-
ordinate to the easement, and does not restrict or limit its exer-
cise.'^ In the case just cited Mr. Justice Sloss said: ** There is
no inconsistency between the portion of the decree declaring that
plaintiff has an easement in these ditches, and that portion which
grants to defendant the right to use the ditches jointly with plain-
tiff for the purpose of carrying his waters. The easement is a
right to use the lands of the defendant for conducting her waters
to her lands. It can co-exist with a right in the defendant or any-
one else to use the same waterways, so long as such use does not
restrict or interfere with the right owned by the plaintiff. It would
not be claimed that merely because A has a right of way over
B's land, B cannot, under any circumstances, use the portion of
his land affected by the easement in a manner which does not in-
fringe ftpon the exercise of such easement. It is well settled, as a
general proposition, that the owner of the servient estate may use
his property in any manner and for any purpose consistent with
the enjoyment of the easement. "^^ The same is true when the
right to the ditch has been obtained by prescription.^** One might
acquire a prescriptive right to. use an irrigation ditch to convey a
limited quantity of water to his Iflnd, while another retained the
right also to use the ditch for his own purposes to the extent of
its remaining capacity.*^*

W Graham v. Redlands Heights ^^ Smith v. Hampshire (Cal.

Water Co. et al., 3 Cal. App. 732, App.), 87 Pac. 224 (citing Abbott v.

86 Pac 989 Pond, 142 Cal. 396, 76* Pac. 60, 61) ;

128 Hoyt 'v. Hart, 149 Cal. 722, 87 f-*«^^^^ v Mooney, 4 Cai. App. 276,

rae. dw. ,31 Bashore v. Mooney, 4 Cal. App.

i» Accord Colegtove Water Co. v. 276. 87 Pac. 553. See Vol. 48 Cen-

City of Hollywood, 151 Cal. 425, 90 turv Digest, Waters and Watercourses,

Pac. 1053. gees. 149, 150.

256

THE LAW OF APPBOPBIATION.

H 162, 163

§ 102. Repair of Ditchei. — As in the case of any easement, the
ditch owner, as the dominant, has the duty of keeping the ditch
in repair, and not the landowner. ^^ Correspondingly he has a
right of entry upon the servient estate to make the repairs,^*^ and
to clean out the ditch, and if the landowner interferes, injunction
lies . ^^ The landowner, on his part, cannot remove the lateral
or subjacent support to which the ditch is entitled. ^*^ Otherwise
he is free to use his land in the ordinary way, such as for pasturing
sheep, though they trample the ditch. It is the ditch owner's duty
to fence or otherwise keep the diteh in repair against damage from
the ordinary use of the land by the landowner.^^ And per cotifm
if the cattle drown in the ditch the ditch owner is not liable to the
landowner. ^^ Where ditch crosses ditch, the later claimant must
adjust the crossings so as not to interfere with the prior ditch.^®
Repairs may be made on a ditch slightly changing its grade.^^

§ 163. Damage from Breaking Ditches, etc. — ^The use by means
of ditches, flumes and similar apparatus is, of course, the most
usual, and using the water in this way does not, by any means, make
the appropriator an insurer of others against damage from break-
ing, overflow, seepage, or other escape of the water. The famous
English case of Fletcher v. Rylands ^^ declared that a man builds
a reservoir, or other works to hold water, at his peril.^*^ But such

132 Fraler ▼. Sean •etc. Co., 12 Gal.
556, 73 Am. Dec. 562; Richardson v.
Kier, 34 Oal. 63, 91 Am. Dec. 681;
Richardson v. Kier, 37 Gal. 263; Dor-
fee V. Garvey, 78 Gal. 546, 21 Pac.
302; Bean v. Ston^man, 104 Gal. 49,
37 Pac. 777, 38 Pac. 39.

133 Pico V. Golimas, 32 Gal. 578;
Ware v. Walker, 70 Gal. 591, 12 Pac.
475.

134 Stufflebeam v. Adelsbach, 135
Gal. 221, 67 Pac. 140.

185 Gregory v. Nelson, 41 Gal. 278;
Lorenz v. Waldron, 96 Gal. 243, 31
Pac. 54.

iM Gattle trampling ditch. Durfee
V. Garvey, 78 Gal. 546, 21 Pac, 302;
Keller v. Fink (Gal.), 37 Pac. 411.
Gattle polluting ditcli Gity of Bel-
levue V. Daly (Idaho), 94 Pac. 1037.
ContrOf however, Bilen v. Pauley, 18
Or. 47, 21 Pac. 934, 4 L. R. A. 840.

137 Messinger v. Gordon, 15 Golo.
App. 429, 62 Pbc. 959.

188 Jennison v. Kirk, 98 U. S. 453,
25 L. ed. 240.

13» Burris v. People's Ditch Go., 104
Gal. 248, 37 Pac. 922,

140 L. R. 1 Ex. 265, L. R. 3 H.
L. 330.

141 '«In Rylands v. Fletcher, L. R.
1 Ex. 267, L. R. 3 H. L. 330, it was
declared that no amount of diligence
is a legal excuse, if such water es-
capes and damages another. The cor-
rectness of this doctrine has been
much discussed by law-writers and
courts. It has been approved in
Massachusetts (see Gorluun v. Gross,
125 Mass. 232, 28 Am. Rep. 234) ; in
Minnesota (see GahiU v. Eastman, 18
Minn. 324 (Gil. 292), 10 Am. Rep.
184). It has been disapproved in
other States. See Liosee v. Buchanan,
51 N. Y. 476, 10 Am. Rep. 623; Pa.
Goal Go. v. Sanderson, 113 Pa. St. 126,
57 Am. Rep. 445, 6 AU. 453; Mar-
shall V. Welwood, 38 N. J. L. 339, 20
Am. Dec. 394." Scott v. Longwell,
139 Mich. 12, 102 N. W. 230.

§ 163

ARTIFICIAL WATEECOUBSES.

257

is not the law in the West. The ditch owner is not liable merely
because the break or escape occurred, but only if it occurred through
his negligence. Negligence must be shown.^^ It is not even a case
of res ipsa loquitur and negligence is not presumed from the mere
fact that a break or escape occurred.*^ The ordinary rule of
negligence, that there must be a failure to use the care which an
ordinary prudent man would have taken under the circumstances,
applies.*** The owner of a mill race must use care ''proportionate
to the danger" to prevent the water from escaping and percolat-
ing through the banks to the injury of the adjacent property own-
ers/**^ and if a dam breaks without his fault he must repair it as
soon as practicable.***

In one case the test is said to be : ''The true test, considering all
the circumstances, is, ought a competent and skillful engineer rea-
sonably to have anticipated such a flood as caused the damage to
the plaintiff and to have made provision therefor t""'' though
that seems to put too strong an interpretation on due care when
separated from the facts of that case ; for it is a simple question of
fact as to what is due care in each case, on the part of an ordinary
prudent man, and not necessarily a skillful engineer. The failure

142 Tenn^ ▼. Miners' Ditch Co., 7
Cal. 335; Wolf v. St. Louis CJo., 10
Cal. 541 ; Todd v. CocheU, 17 Cal. 98 ;
Bichardson t. Eier, 34 Cal. 63, 91
Am. Dec. 681; Tennej v. Miners'
Ditch Co., 7 Cal. 335; Hoffman v.
Tnolnmne etc. Co., 10 Cal. 413 ; Ever-
ett y. Hydraulic Co., 23 Cal. 225;
CampbeD v. Bear River Co., 35 Cat.
679; HoweU v. Big Horn Basin etc.
Co., 14 Wyo. 14, 1 L. B. A., N. S.,
596, 81 Pac. 785, citing cases; City
of Denver v. Mnllen, 7 Colo. 345, 3
Pac. 693; Platte Co. v. Anderson, 8
Colo. 131, 6 Pac. 515; Walley v.
Platte Co., 15 Colo. 579, 26 Pac. 129 ;
King V. Miles, 16 Mont. 463, 50 Am.
St. Bep. 506, 41 Pac. 431; Fleming
▼. Lockwood (Mont.), 92- Pac.
962; City of Paris v. Tucker (Tex.
Civ. App.), 93 8. W. 233 (a pipe-
line); Weidekind v. Tuolumne etc.
Co. (Cal.), 12 Pac. 387; Kearney etc.
Co. V. Akeyson, 45 Neb. 635, 63 N.
W. 921; Oatlin etc. Co. v. Beet, 2
Goto. App. 481, 31 Pac. 391 (holding
nsgHgence shown) ; Arave v. Idaho
etc. Co., 5 Idaho, 68, 46 Pac. 1024;

Water Bights — 17

Shields v. Orr etc. Co., 23 Nev. 349,
47 Pac. 194; Bacon v. Kearney etc.
Syndicate, 1 Cal. App. 275, 82 Pac.
82 (overflow of ditch) ; Parker v. Lar-
son, 86 Cal. 236, 21 Am. St. Bep.
30, 24 Pac. 989 (leakage); Mulrone
V. Marshall (Mont.), 88 Pac. 797, cit-
ing Montana cases; Pomeroy on Bi-
garian Bights, sec. 12. See 81 Am.
t. Bep. 492, note; Blanohard and
Weeks on Mining Claims and Water
Bights, 748;

i« Tenny v. Miners' etc. Co., 7
Cal. 335. But see contra, Larimer etc.
Co. V. Zimmerman, 4 Colo. App. 78, 34
Pac. 1111, concerning a statutory pre-
sumption under M. A. S. 2272.

144 Wolf V. St. Louis etc. Co., 10
Cal. 541, and cases just cited. Cf.,
also, Parker y. Gregg, 136 Cal. 413,
69 Pac 22

i^ Scott V. Longwell, 139 Mich. 12,
102 N. W. 230.

148 Hoffman v. Tuolunme Co., 10
Cal. 418.

147 Price v. Oregon etc. Co., 47 Or.
350, 83 Pac. 843.

258

THE LAW OF APPROPRIATION.

S 164

to employ a skillful engineer, or to act as such a person would, may
be evidence of negligence, but it is simply a question of fact for
the jury to consider in deciding whether such care was used as an
ordinary prudent man would have used under the circumstances.
The law seeks only to preserve the ordinary course of things ; and
if damage then occurs, it must lie where it falls. An instruction
that defendant must use the care of ''a very prudent man" is
held erroneous.^*®

Where all the land in controversy was mineral land, one party
cleared off a portion of his claim and planted it to potatoes. In
the irrigation of his crop the water percolated through and into
the mining tunnel of plaintiffs, and they sought to restrain him
from such use of his land. The court says: "The defendant had
the undoubted right to cultivate and plant this tract of land, and.
having planted it, there can be as little question that he had the
same right to irrigate it for the purpose of maturing his crop. In
irrigating his land the defendant is subject to the maxim 'Sic utere
tuo ut alienum nan laedas.' An action cannot be maintained
against him for the reasonable exercise of his right, although an
annoyance or injury may thereby be occasioned to the plaintiffs.
He is responsible to the plaintiffs only for the injuries caused by
his negligence or unskillfulness, or those willfully inflicted in the
exercise of his right of irrigating his land." *^

§ 164. Same. — Where the overflow results from a flood, it is
still a question of use of due care ; there being no liability for such
extraordinary floods as would surprise caution, but being liable
where the floods were periodical or might have been anticipated.
There is no liability for damage from floods that could not be an-
ticipated,^^ or from rainstorms of such unusual severity as to sur-
prise caution."* A flood resulting from an unprecedented rain-

i« Wolf V. St. Louis Co., 10 Cal.
644.

i« Gibflon V. Puchta, 33 Cal. 310.

Ab to the effect of contributing neg-
ligence, see Shields v. Orr etc. Co.,
23 Nev. 349, 47 Pac. 194; MeLeod v.
Lee, 17 Nev. 103, 28 Pac. 124; Fraler
v. Sears etc. Co., 12 Cal. 555, 73 Am.
Dec. 562; Greeley Irr. Co. ▼. House,
14 Colo. 549, 24 Pac. 329; Consoli-
dated etc. Co. V. Hamlin, 6 Colo. App.
341, 40 Pac. 582; Araye v. Idaho C.
Co., 5 Idaho, 68, 46 Pac. 1024; Stu-
art V. Noble D. Co., 9 Idaho, 765, 76

Pao. 255; Jenkins v. Hooper Irr. Co.,
13 Utah, 100, 44 Pac. 829; Lisonbee
V. Monroe Irr. Co., 18 Utah, 343, 72
Am. St. Bep. 784, 54 Pac. 1009; North
Point Co. V. Utah Co., 16 Utah, 246,
67 Am. St. Bep. 607, 52 Pac. 168,
40 L. R. A. 851.; Bacon v. Kearney, 1
Cal. App. 275, 82 Pac. 84.

180 Proctor ▼. Jennings, 6 Nev. 83,
3 Am. Bep. 240.

181 Lisonbee v. Monroe etc. Co.,
18 Utah, 343, 72 Am. St. Rep. 784,
54 Pac. 1009.

§164 ARTIFICIAL WATERCOURSES. •259

storm causes no liability, ^^^ but floods that are of periodical oc-
currence must be guarded against by the ditch owner, as it is pos-
sible to take precautions against floods of that kind.^^ In the lat-
ter case cited in the foregoing note the court says: "The injury
complained of occurred in a season of high water caused by the
melting of the snow on the mountains above. The overflow so
caused is periodical, and may be, and is, anticipated by all persons
inhabiting the regions where the alleged damage occurred. The
obligation rested on defendant to keep the banks of its canal in re-
pair. 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 busi-
ness man when dealing with his own affairs under the circum-
stances which surround him and call his mind and energy into ac-
tion." In another case it is said: "If the defendant was not
bound to provide against unheard-of floods, he was at least bound
to provide against such as had occurred not more than three years
prior to the construction , of the ditch. "**^ Extraordinary rain-
falls must be guarded against if experience shows them to be re-
current even though at irregular intervals.^*"^

It is thus not true to say that only "acts of God" absolve from
liability for flood, since reasonable care cannot guard against some
floods which still fall short of technical ''vis major." Only vis
major will absolve from breach of contract, however, as distin-
guished from tort, and dealing with a contract in this connection,
it has been said that floods or extraordinary freshets, in order to
come within "Act of Grod" must be more than such rises oY high
water in a stream as are usual and ordinary and reasonably an-
ticipated at particular periods of the year.^*^

The ditch owner is not per se liable for damages from leakage
caused without negligence by the activity of some burrowing

IK Mathews ▼. Kinsell, 41 Cal. i56 Fairbury etc. Co. v. Chicago etc.

512; Chidester t. ConBolidated Ditch Co. (Neb.), 113 N. W. 535.

Co., 59 Cal. 197. IM Ryan v. Rogers, 96 Cal. 349,

IBS Turner v. Tuolnmne etc. Co., 25 31 Pac. 244. See Mulrone v. Mar-

CaL 397; Chidester v. Consolidated shaU j^Mont.), 88 Pac. 797.

Ditch Co., ^59 Cal. 197. Concerning damages from flood in

184 BnrlMmk v. West Walker River general, see 57 Central Law J. 268.
Ditch Co., 13 Nev. 431.

260 THE LAW OF APPROPRIATION. S 164

animal,**^ but it is otherwise where the ditch owner was also
negligent.***

It has been held that notice or warning to the ditch owner
is sufficient to fix him with negligence if he remains inactive and
the damage occurs thereafter.**

167 Tennej v. Miners' etc. Co., 7 159 Greeley etc. Oo. ▼. House, 14

Cal. 335. Colo. 549, 24 Pac. 329; McCartr ▼.

IBS Greeley etc. Go. v. House, 14 Boise etc. Co., 2 Idaho (225), 245,

Colo. 549, 24 Pac. 329. 10 Pac. 623.

§S 165, 166 QUANTITY OF WATEB. 261

CHAPTER X.

LIMITATIONS ON USE— LIMITATIONS ON QUANTITY OP

WATEE.

A. THREE TESTS.
S 165. Introductory.
S 166. The original claim.
S 167. Capacity of ditch — Intermediate test.
§ 168. Beneficial use— The final test.

S 169. Reason of these rules.

B. BENEFICIAL USE THE ULTIMATE TEST.

f 170. What constitutes waste.

9 171. Future needs.

S 172. Same.

§ 173. Same.

$ 174. Duty of water.

S 175. Measurement of water.

§ 176. Summary.

A. THREE TESTS.

§ 165. Three tests of quantity are found in the decisions.
First, the original claim, which must obviously be so becaiise of the
rule permitting successive appropriations. ' Second, the capacity of
the ditch, because an appropriation, being created by taking pos-
session of the stream, could not exceed the amount diverted and
taken into possession. In the early cases, when the right was un-
questionably accepted as a possessory right on the public domain,
the capacity of the ditch was frequently taken as the chief test,
because it fixed the amount in possession. Third, the amount bene-
ficially used, because all that is not used within a reasonable time
is regarded as abandoned. To-day, however, the third has over-
shadowed all the others, being narrower than the others, and now
most strongly insisted upon..

§ 166. The Original Claim.— The appropmtor is limited to the
quantity first appropriated, and he cannot divert more than that
as against subsequent appropriators.^ By the early cases before

1 Senior v. Anderson, 115 Cal. 496, Creek etc. Co., 15 Utah, 225, 49 Pao.
47 Pac. 454; Union ete. Co. v. Dang- 892, 1119.
berg, 81 Fed. 73; Becker v. Marble

262

THE LAW OF APPBOPRIATION.

S 167

the code in California the appropriator was limited to the amount
originally claimed, and the amount claimed was determined largely
from the means .used, and the purpose intended,- and such would
still be the rule in California for an appropriator by actual
diversion, the code formalities not being followed. An appro-
priation made under the present statutes of all States, however,
requires the amount claimed to be specially stated in the notice or
in the application for permit, and the appropriation is limited to
that as the maximum.'

The amount claimed in the notice is the first limit.* This is
quite obvious, being necessary for the protection of subsequent
appropriators. As against subsequent appropriators not existing
at the time of the enlargement of one's claim, however, the en-
largement may, of course, be made, just as a new appropriation
could be made ; being in accord with .the established doctrine of
priority.*^

§ 167. Capacity of Ditch— Intermediate Test.— The appropria-
tor, by claiming more than he actually diverts, gets no right to
divert the surplus later as against intervening claimants ; and hence,
the capacity of his ditch, if less than the amount claimed, is the
second test of the amount to which he is entitled, allowing a rea-
sonable time after completion of the ditch to remove boulders or
other obstructions.® The quantity of water appropriated is meas-
ured by the capacity of the ditch at the smallest point, as deter-
mined by evidence of size and grade.*^ The capacity of the ditch
is the second test.

2 White V. Todd^B Valley etc. Co.,
8 Cal. 443, 68 Am. Dec. 338; Ort-
man v. Dixon, 13 Cal. 33; McDonald
V. Bear River etc. Co., 13 Cal. 220;
McKinney v. Smith, 21 Cal. 374; Too-
bey V. Campbell, 24 Mont. 13, 60 Pac.
396.

3 See ante, cc. VII, VIII.

4 Last Chance etc. Co. v. Heilbron,
86 Cal. 1, 26 Pac. 523.

5 Beaver etc. Co. v. St. Vrain etc.
Co., 6 Colo. App. 130, 40 Pac. 1066;-
Hecton etc. Co. v. Valley etc. Co., 28
Colo. 315, 64 Pac. 205.

e White V. Todd's etc. Co., 8 Cal.
443, 68 Am. Dec. 338; Ortman v.
Dixon, 13 Cal. 33; McKinney v. Smith,

21 Cal. 374; Posachane etc. Co. v.
Standart, 97 Oal. 476, 32 Pac. 532;
Bean v. Stoneman, 104 CaL 49, 37
Pac. 777, 38 Pac. 39; Senior v. An-
derson, 115 Cal, 496, 47 Pac. 454;
San Luis etc. Co. v. Estrada, 117 Cal.
168, 48 Pac. 1075 ; McDonald v. Lan-
nen, 19 Mont. 78, 47 Pac. 648; Pome-
roy on Riparian Rights, sees. 80, 81;
Kinney on Irrigation, sees. 162, 166.
See 60 Am. St. Rep. 808, 814, note.
7 Ophir S. M. Co. v. Carpenter, 6
Nev. 393; Barnes v. Sabron, 10 Nev.
217; Cai^thers v. Pemberton, 1 Mont.
Ill; Browning v. Lewis, 39 Or. 11,
64 Pac. 304.

§ 168

QUANTITY OF WATER.

263

Prima facie the capacity of the ditch was considered in the early
cases to measure the appropriation, since the diversion of a certain
amount is, by taking it into possession, an appropriation of that
amount. This prima facie amount is then cut down by all that
is wasted, such amount not beneficially used being abandoned or for-
feited. Hence, there has been a tendency in Colorado to decree
rights to the capacity of ditches. Concerning the measurement
of ditch capacity, when the term is used in a contract, it is said
to be authoritatively settled in Colorado that ** capacity of ditch"
means the ability of the canal to supply or deliver water, and that
in determining this question there must be taken into consideration
not only the physical capacity of the canal, but the volume of its
decreed priorities, in connection with the probability of obtaining
^vater from the stream supplying them under normal conditions
during the season of irrigation.^

§ 168. Beneficial Use — ^The Final Test. — The appropriator is
not even entitled to the quantity actually diverted and taken into
possession if he uses only a portion of it; his right is limited
to the amount so actually used. This is now strenuously enf orced.*

8 Wyatt V. Larimer etc. Irr. Co.,
18 Colo. 298, 36 Am. St. Bep. 280, 33
Pae. 144, reaffirmed in Larimer &
Weld Irr. Co. v. Wyatt, 23 Colo. 480,
48 Pac. 528; La Junta & Lamar Co.
V. He«8, 31 Colo. 1, 71 Pac. 415;
Blakely v. Ft. Lyon etc. Co., 31 Colo.
224, 73 Pac. 249. And as to meas-
urement of capacity of ditch, see Wa-
ter Supply Co. V. Larimer etc. Co., 24
Colo. 322, 51 Pac. 496, 46 L. B. A.
322; Broadmoor etc. Co. t. Brookside
etc. Co., 24 Colo. 541, 52 Pac. 792.

9 Beneficial use limits amount.
AlaaJca. — Ketchikan Co. v. Citizens'

Co., 2 Alaska, 120. .

Calif amia, — ^White v. Todd's etc.
Co.. 8 Cal. 443, 68 Am. Dec. 338;
Dougherty v. Haggin, 61 Cal. 305;
Barrows v. Fox, 98 Cal. 63, 32 Pac.
811 ; Biverside etc. Co. t. Sargent, 112
Cal. 230, 44 Pac. 560; Santa Paula
etc Works v. Peralta, 113 Cal. 38, 45
Pelc. 168; Senior v. Anderson, 115 Cal.
496, 47 Pac. 454; Smith v. Hawkins,
120 (M. 86, 52 Pac. 139; Senior v. An-
derson, 130 Cal. 290, at 297, 62 Pac.
563; Bledsoe ▼. Decrow, 132 Cal. 312,
64 Pac. 397; Barneich v. Mercy, 136

Cal. 205, 68 Pac. 589 ; Strong v. Bald-
win, 137 Cal. 432, 70 Pac. 288; Hew-
itt V. Story, 64 Fed. 510, 12 C. C.
A. 250, 30 L. B. A. 265. The rule is
enacted in sectioji 1411 of the Ciril
Code.

Colorado. — ^Yunker v. Nichols, 1
Colo. 551; Combs v. Agric. D. Co.,
17 Colo. 146, 28 Pac. 966, 31 Am. St.
Bep. 275; X. Y. etc. Co. v. Buffalo
etc. Co., 25 Colo. 629, 55 Pac. 720;
Platte Valley Co. v. Central Trust Co.,
32 Colo. 102, 75 Pac. 391; Nichols v.
Mcintosh, 19 Colo. 22, 34 Pac. 278;
Church V. Stillwell, 12 Colo. App. 43,
54 Pac. 395; United States etc. Co.
V. GaUegos, 89 Fed. 772, 32 CCA.
470; Burkart v. Meiberg, 37 Colo. 187,
86 Pac. 98, 6 L. B. A., N. S., 1104;
Cooper V. Shannon, 36 Colo. 98, 85
Pac. 175; Town of Sterling v. Paw-
nee Co. (Colo.), 94 Pac. 341.

Idaho, — ^Van Camp v. Emery, 13
Idaho, 202, 89 Pfeic. 752; Drake v.
Earhart, 2 Idaho, 750, 23 Pac. 541;
Stickney ▼. Hanrahan, 7 Idaho, 424,
63 Pac. 189; Kirk v. Bartholomew, 2
Idaho, 1087, 29 Pac. 40.

Montana. — Toohey v. Campbell, 24

264

THE LAW OF APPBOPBIATION.

S 160

Even if less than capacity of ditch.^^ ' ' the right of a party in
appropriating water is limited to the amount he actually uses for
a beneficial purpose, not exceeding the carrying capacity of his
ditch or canal. " "

Irrigation codes usually contain the provision, Beneficial use
shall be the basis, the measure, and the limit of the right. " ^

§ 189. Beaaon of These Boles.— By diverting to the full
capacity of the ditch the stream was, to that extent, taken into the
possession of the claimant, and the eiarly cases protected his pos-
session or appropriation thus made, with the proviso that, having
taken it, he should not act with regard to it, in the words of
Chief Justice Sanderson, as ''the dog in the manger." '^ The pro-
' tection in the possession of the stream was withdrawn to the extent

Mont. 13, 60 Pac. 396; Quiglej v.
Birdseje, 11 Mont.. 439, 28 Plac. 741 ;
KleinBchmidt v. Greiaer, 14 Mont. 484,
43 Am. St. Rep. 652, 37 Pac. 5; Creek
▼. Bozeman W. Co., 15 Mont. 121, 38
Pac. 459; Anderson v. Cook, 25 Mont.
330, 64 Pac. 873, 65 Pac. 113; Stats.
1907, c. 185, pp. 109, 489.

Nebraska. — Courthouse etc. Co. v.
Willard (Neb.), i06 N. W. 463;
Farmers' Irr. Dist. v. Frank, 72 Neb.
136, 100 N. W. 286.

Nevada. — Twaddle ▼. Winters
(Nov.), 89 Pac. 289; Simpson v. Will-
iams, 18 Nev.* 4d2, 4 Pac. 1213;
Boeder v. Stein, 23 i\ev. 92, 42 Pac.
867; Union Mill Co. v. Dangberg
(Nev.), 81 Fed. 73; Bodgers ▼. Pitt
(Nev.), 89 Fed 420, 129 Fed. 932;
Gotelli V. CardeUi, 26 Nev. 382, 69
Pac. 8; Berry v. Equitable etc. Co.
(Nev.), 91 Pac. 537; Stats. 1907, p.
30, sec. 4.

New Mexico, — ^MiUheiser v. Long,
10 N. Mez. 99, 61 Pac. 111.

Oregon, — Simmons v. Winters, 21
Or. 35, 28 Am. St. Bep. 727, 27
Pac. 7 ; Hindman v. Bizor, 21 Or. 112,
27 Pac. 13; Cole v. Logan, 24 Or.
304, 33 Pac. 568 ; Bowman v. Bowman,
35 Or. 279, 57 Pac 646; Cole v.
Logan, 24 Or. 304, 33 Pac. 568;
Glaze V. Frost, 44 Or. 29, 74 Pac.
336 ; Bolter v. Garrett, 44 Or. 304, 75
Pac. 142; Gardner v. Wright (Or.),
91 Pac. 286; Mann v. Parker (Or.),
86 Pac. 598.

South Dakota, — Stenger v. Tharp,
17 S. Dak. 13, 94 N. W. 402.

{7to^— Manning v. Fife, 17 Utah,
232, 54 Pac. Ill; Becker v. Marble
etc. Co., 15 Utah,- 225, 49 Pae. 892;
Becker v. Marble Cr. Irr. Co., 15 Utah,
225, 49 Pac. 892; Hague v. Nephi
Irr. Co., 16 Utah, 421, 67 Am. St.
Rep. 634, 52 Pac. 765, 41 L. R. K.
311; Nephi Irr. Co. v. Vickers, 29
Utah, 315, 81 Pac. 144.

Washington, — ^Pierce's Code 1905,
sec. 5836.

Wyoming. — Johnston v. Little Home
etc. Co., 13 Wyo. 208, 110 Am. St.
Bep. 986, 79 Pac. 22, 70 L. R. A. 341.
Stats. 1907, p. 138, sec. 12, saying;
"irrespective of carrying capacity of
ditch."

10 Riverside etc. v. Sargent, 112
Cal. 230, 44 Pac. 560; Smith v. Haw-
kins, 120 C;aL 86, 52 Pac. 139; Bled-
soe V. Decrow, 132 CaL 312, 64 Pac.
397; Walker v. Lillingston, 137 Ckl.
401, 70 Pae. 282; Barnes v. Sabron,
10 Nev. 217; Bowman v. Bowman, 35
Or. 279, 57 Pac 546; Millheiser v.
Long, 10 N. Mex. 99, 61 Pac. Ill;
Stenger v. Tharp, 17 S. Dak. 13, 04
N. W. 402.

11 Stenger v. Tharp, 17 S. Dak.
13, 94 N. W. 402.

12 See ante, sec 25.

18 Nevada etc. Co. v. Kidd, 37 Cal.
282. The same ezpresfdon is bor-
rowed by Judge Hawley in Union etc
Co. V. Dangb^, 81 Fed. 7S.

§ 169 • QUANTITY OP WATER. 265

that the water was being wasted. Any use which is not waste is
hence a beneficial nse.^^

Undoubtedly the rule of * beneficial use thus arose as one pro*
hibiting waste. To*day'it is sometimes stated as one enforcing
economical use ; nor are these two forms of expression synonymous.^^
While waste will not necessarily exist because you. might get along
with less, the most economical use would require the lesser use and
make irrigation perilous. It is frequently said^^ that the ap-
propriators and users of the waters will be required and com-
manded to so divert, use and apply the waters as to secure the
largest duty and greatest service therefrom. Yet, a lesser duty
and service than the largest, might stiU f ajl short of waste. The
difference in the mode of expression is that the prohibition of
waste allows what engineers call a ''factor of safety"; while the
requirement of most economical use is like keeping a bridge con-
tinually loaded to its theoretical capacity.

As examples of the correct form of statement: In one case the
court says: ''Perhaps the appellant's counsel is of the belief that
the plaintiff, having made the first appropriation, is entitled to
have the water come down to him to the extent of his appropria-
tion, whether he has use for it or not. If so, he is mistaken.
Water is too precious in this arid climate to permit its being un-
necessarily wasted."" In another case: "If the defendants have
no present or immediate need of the full quantity of water which
they may divert and use, they cannot waste it, but it is their duty
to allow such portion as they have no immediate need for to remain
in the natural stream, or, if diverted, to return such surplus again J
into the same stream, where, unless they then intend to recap-
ture it, it becomes subjeci to diversion by the various ditches in
accordance with their numerical prioritiies. " ^®

The appropriator is limited to the amount beneficially used
because waste is not tolerated. The whole system aims to prevent
the obvious danger that a few appropriators might monopolize and

W See ante, sec. 120, Beneficial n Boeder v. Stein, 23 Nev. 92, 42

PnrpoBe. Pac. 867.

« Judge J. M. Seawell in Califor- 18 Burkart v. Meiberg, 37 Colo. 187,

nia Past. Co. v. Madera etc. CSo. (8n- 86 Pac. 98, 6 L. B. A., N. 8., 1104,

perior Court of Madera County, Call- citing La Jara Co. v. Hansen, 35 Colo,

fomia, Nov. 13, 1906). 105, 83 Pac. 644.

1^ For example, in Van Camp v.
Emwy, 13 Idaho, 202, 89 Pac. 752.

2d8 THE LAW OF APPBOPBIATION. § 171

The mere fact that an increase is made in the number of acres
irrigated,*^ or in the capacity of a mill run with water,*® does
not Agw the use of more water, since compatible with a more
efficient use of the same amount of water. The mere fact of a sale
of part of water right does not per se show that beneficial use is not
being made.'*^ But where there is evidence of an unused quan-
tity of water, which is taken by a subsequent claimant, the former
cannot claim the right to sell to and charge the latter for the use
of such amount he himself does not utilize, since he has no right
to it.«

One using only an insignificant quantity of water for water-
ing a garden patch cannot later claim that he has a right to
enough water to irrigate a f arm.^ If one builds a dam, spreading
out the water. for cattle to wallow in, so that much is lost by
evaporation, an injunction will be granted.^ An appropriator,
having as much as he needs, cannot, by buying up riparian land,
get an additional amount, having no need for it."*^' The appro-
priator is not required to furrow his land before irrigating the
same.^

The practice of rotation is becoming more frequent, by which
several appropriators pool their rights and use the whole for
periods of time, and this often accomplishes a more economical
use of the water. In one case it is said: ^"^ "Rotation in irrigation
undoubtedly tends to conserve the waters of the State and to in-
crease and enlarge their duty and service, and is, consequently,
a practice that deserves encouragement in so far as it may be done
within legal bounds."

§ 171. Future Needs. — In considering the amount of water to
which an appropriator is entitled, there is introduced a new

89 Platte etc. Co. v. Central Trust « Mann v. Parker (Or.), 86 Pac.

Co., 32 Colo. 102, 75 Pac. 391 ; Piil- 598.

ton etc. Co. v. Meadow etc. Co., 35 43 San Luis etc. Co. v. Estrada,

Colo. 588, 86 Pac. 748; Cache La 117 C&l. 168, 48 Pac. 1075.

Poudre etc. Co. v. Larimer etc. Co , 4* Ferrea . v. Knipe, 28 Cal. 340, 87

25 Colo. 144, 71 Am. St. Rep.. 123, Am. Dec. 128.

53 Pac. 318. 46 Senior v. Anderson, 130 Cal. 290.

40 Union etc. Co. v. Dangberg. 81 62 Pac. 563; S. C, 138 Cal. 716, 72
Fed. 73. • Pac. 349.

41 Calkins v. Sorosis etc. Co., 150 46 NepM Irr. Co. v. Vickers. 21
Cal. 426, 88 Pac. 1094 ; Drake v. Ear- Utah, 315, 81 Pac. 144.

hart, 2 Idaho, 716, 23 Pac. 541. But 47 Helphrey v. Perrault, 12 Idaho,

cf, Johnston v. Little Horse etc. Co., 451, 86 Pac. 417.
13 Wyo. 208, 110 Am. St. Rep. 986,
79 Pac. 22, 70 L. R. A. 341.

§ 171

QUANTITY OF WATEB.

269

feature to meet the requirements of irrigation. The history and
principles so far stated show that the system of appropriation aims
fundamentally at definiteness and certainty. It allowed the prior
appropriator to take what he wanted and do with it what he
wanted, if he let the world know, so that later comers would
have to take things as they found them, and would know what
they could take. Consequently, as regards the limitation to bene-
ficial use, later appropriators had to look solely at the amount the
prior appropriator was actually applying to a beneficial purpose
at the time the subsequent claimant arrived. For any enlarge-
ment of amount used thereafter the prior claimant had to take his
chances with others at the time he sought to increase the amount.

But while in mining a fixed amount may usually be sufficient
from the start for all purposes, in irrigation of newly settled
land-it will not. The need for water grows as the area cultivated
grows. The settler can cultivate, perhaps, only a few acres the
first year ; but he does everything with a view to later expansion.
As is said in one case, it is reasonable to suppose that reclamation
of the entire area owned at the time of diversion is contemplated.^
Before his larger acreage is cleared and planted, however (which
may take several years), other claimants to the use of the water
have arrived. Does the law allow the former to continue increasing
his use in the face of these later claimants t

It seems well settled that such is the rule. The amount used
need not be a fixed, constant* quantity. The amount used is still
a limit, as previously -set forth. But it is a movable limit, which
may gradually increase as the irrigator's needs increase. The
principle has been repeatedly affirmed in Colorado, Idaho, Mon-
tana, Nevada, Oregon, Utah and Washington.^ In California this

48 Leaward v. Paeific etc. Co. (Or.),
8S Pac. 9.63.

40 Colorado. — New Merder etc. Co.
r. Armstrong, 21 Colo. 357, 40 Pac.
989.

Idaho. — Hall v. Blackman, 8 Idaho,
272, 68 Pac. 19; Conant v. Jones, 3
Idaho, 606, 32 Pac. 260; Brown v.
Newell, 12 Idaho, 16, 85 Pac. 385.

Montana, — Kleinschmidt v. Qreiser.
14 Mont. 484, 43 Am. St. Bep. 652,
37 Pac. 5; Arnold v. Passavant, 19
Mont. 575, 49 Pac. 400.

Nevada. — ^Barnes v. Sabron, 10
Nev. 217; Bodgere v. Pitt, 129 Fed.

932; Union Mining Co. t. Dangberg,
81 Fed. 73.

Oregon. — Nevada D. Co. v. Bennett,
30 Or. 59, 60 Am. St. Bep. 777, 4?
Pac. 472; Glaze v. Frost, 44 Or. 29,
74 Pac. 336; Seaward v. Pacific etc.
Co. (Or.), 88 Pac. 963.

Crta*.— Elliot V. Whitmore, 23
Utah, 342, 90 Am. St. Bep. 700, 65
Pac. 70.

Washington. — ^Longmire v. Smith,
26 Wash. 439, 67 Pac. 246, 58 L. B.
A. 308.

270 THE LAW OF APPROPRIATION. § 172

principle was affirmed in Senior v. Anderson,^ though the enlarge-
ment was not upheld on the facts of the case. There seems no other
California decision on the point, the court relying on Oregon
cases.'^^ In a later case the California court said: ''There are
cases which hold that the divension of a large quantity of water is
a good appropriation of the whole ab initio, although it is not all
used at first, if the design is gradually to extend the use, and that
design is carried out before an adverse appropriation of the surplus
below the point where it is returned to the stream. But this is
a point which has not been argued, and we merely allude to it in
passing. "^^ The essential point of the rule is not correctly stated
in this passage, since the essence of the rule is that the design may
be carried out in spite of an intervening appropriation elsewhere on
the stream, as the quotations below show.

It is a rule of holding the capacity of the ditch for future use.
Prima fade, the capacity of the ditch, being the amount in actual
possession, is, as already discussed, the amount appropriated; but
all not used within a reasonable time is abandoned. Where, due
diligence is used to put the full capacity to use within a reasonable
time, abandonment is negatived. The principle is sometimes called
that of annual increase of irrigation; but the designation of ''ap-
propriation for future needs" which is suggested by an expres-
sion in an opinion hereafter quoted from Judge Hawley, is more
expressive of the situation, since the rule is one of holding the
capacity of the ditch for the future enlarged cultivation^

The same doctrine has been applied to future enlargement of use
for power purposes as well as irrigation.*^

§ 172. Same. — There are limitations upon this principle of
figuring future needs in the amount appropriated though not at
present used. These limitations are but applications of the rules
heretofore stated for determination of the amount to which an

CO 115 Cal. 496, 47 Pae. 454. S2 Hubbe and Miners' Ditch Co. t.

51 Compare the following: An ap- Pioneer Water Co., 148 CaL 407, 83

propriator using twenty-five inches en- Pac. 253.

tered into a contract reserving his OS Trade Dollar etc. Co. ▼. Fraaer

*' present right." It was held that (Idaho), 148 Fed. 587 (C. C. A.);

water for future needs was not re- Union Mng. Co. v. Dangberg, 81 Fed.

served under '' present right. " South- 73.
side etc. Co. v. Burson, 147 C!al. 401,
81 Pac. 1107.

5 172 QUANTITY OP WATEB. 271

appropriator is entitled, which apply to future use as much as to
present use.

First, the future needed amount must be originally claimed at
the time of initiating the appropriation; being the limitation
already stated, to the original claim. The future needs must have
been in mind and claimed at the time the appropriation was
originally made, and not a mere afterthought.^ That is, the en-
larged use must be part of an original policy of expansion. Other-
wise, it cannot prevail over interveners.** Water for future needs
must have been part of the original appropriation, and if a decree
settling rights is made, such right, if not included therein, cannot
be claimed thereafter.** Use on after-acquired land must have
been contemplated at the time of the original appropriation.*^*^

Second, the future enlargement cannot exceed the original
capacity of the ditch.^ Among the settled propositions of the law
of appropriation, Judge Hawley**® includes the following: **That
if the water is used for the purpose of irrigating lands owned
by the appropriator, the right is not confined to the amount of
water used at the time the appropriation is made; that the ap-
propriator is entitled not only to his needs and necessities at that
time, but to such other and further amount of water, within the
capctcity of his ditch, as would be required for the future improve-
ment and ext^ided cultivation of his land, if the right is otherwise
keptup.''»

Third, he can hold this future needed amount only for a reason-
able time; if he holds it, without using it, longer than is reason-
able under the circumstances of each case, the right to it is lost
by abandonment. Four years were held to be an unreasonable time
in Senior v. Anderson,** on the facts of that case, saying: **We do
not hold that the Hines appropriation is limited by the quantity
of water he could put to a useful purpose upon his land the first

54 Becker v. Marble Creek etc. Co., 07 Rutherford v. Lucerne etc. Co!,
15 Utah, 225, 49 Pac. 892 ; Brown v. 12 Wyo. 299, 75 Pac. 445.

Baker, 39 Or. 66, 65 Pac. 799, 66 Pac. M McDonald v. Lannen, 19 Mont.

193; Toohey v. CampbeU, 24 Mont. 78, 47 Pac. 648.

13, 60 Pac. 396; Tanghenbaugh v. 69 Union etc. Co. v. Dangberg, 81

Clark, 6 Colo. App! 235, 40 Pac. 153; Fed. 73; quoted, ante, sec. 31. The

Long on Irrigation, sec. 59. italics are ours.

55 Ibid,; Silber t. Frink, 7 Colo. oo See cases cited supra, sec. 167,
148, 2 Pac. 901. Capacity of Ditch.

M i>^rmer8' Union etc. Co. ▼. Bio 61 Supra.

Grande etc. Co., 37 Colo. 512, 86 Pac.
1042.

272

THE LAW OP APPROPBIATION.

I 172

or second year, but to such quantity as he could put to a useful pur-
pose upon his land, within a reasonable time by the use of reason-
able diligence We think that the time elapsing after 1883 ^

was ample to bring under cultivation all the land upon the Hines
place intended for cultivation by the use of water." This is. the
requirement of beneficial use adapted to a situation demanding:
delay.^ What is a reasonable time is a question of fact in each
case.**

''What is a reasonable time in which to apply water originally
intended to be used for some beneficial purpose depends upon the
magnitude of the undertaking and the natural obstacles to be en-
countered in executing the design." It has been held that the
time during which a colonization company was seeking to induce
immigration is a reasonable time.^ Five years have been held
too long;** ten years;*' thirteen years;** eighteen years.** On
the other hand^ seven years have been held a reasonable time;^
thirteen jnears;^* fourteen years." In California there is
ground for saying that five years will be a limit. In
Smith V. Hawkins,'* it was laid down as a general proposi-
tion in California that in all cases the right is lost by for-
feiture if there is a failure for five years to apply the water to a
beneficial use. The principle of forfeiture after a definite period
of non-use appean also in the recent irrigation codes.^* For ex-
ample, in the Idaho statute it is provided that actual application

82 To 1887.

<» Cf, ante. Bee. 124, Diligrence.

w Sieber v. Frink, 7 Colo. 148, 2
Pac 901.

''Wbat 18 a reasonable time in
whieh to applj water originally in-
tended to be ujBed for some beneficial
purpose depends upon the magnitude
of the undertaking and the natural
obstacles to be encountered in exe-
cuting the design." Seaward v. Pa-
cific etc. Co. (Or.), 88 Pac. 963.

60 Nevada Ditch Co. t. Bennett, 30
Or. 39, 59, 60 Am. St. Bep. 777, 45
Pac. 472.

66 Seaward v. Pacific etc. Co. (Or.),
88 Pac. 963.

W Hindman v. Bizor, 21 Or. 112,
27 Pac. 13 ; Cole v. Logan, 24 Or. 304,
33 Pac. 568.

«* Low V. Rizor, 25 Or. 551, 37 Pac.
82.

^ New Mercer etc. Co. v. Arm-
strong, 21 Colo. 357, 40 Pac. 989.

70 Moss V. Bose, 27 Or. 595, 50 Am.
St. Bep. 743, 41 Pac. 666.

Tl SembU, ^dgers v. Pitt, 129
Fed. 932.

72 Hemble, Hall v. Biackman, 8
Idaho, 272, 68 Pac. 19.

On what is a reasonable time see,
also, Gates v. Settlers' Co. (Okla.), 91
Pac. 856; Brown v. Newell, 12 Idaho,
166, 85 Pac. 385, citing Idaho eases;
Beers \. Sharpe, 44 Or. 386, 75 Pac
719; Nevada etc. Co. v. Bennett, 30
Or. 59, 60 Am. St. Bep. 777, 45 Pac
472 : Conant t. Jones, 3 Idaho, 606,
32 Pac. 250. See BUT^a, see. 125,
Diligence.

73 110 Cal. 122, 42 Pac 453. The
case of Smith v. Hawkins is quotetl
and considered again later, infra, sees.
231, 238.

74 Infra, sec. 239.

9 173 QUANTITY OF WATEB. 273

and use of the waters must be made within a time fixed by the State
Engineer when he issues the permit of appropriation, and shall
not exceed four yearsJ^ In adjudication of existing priorities by
the courts, the time, not exceeding four years, and the amount,
for future needs, must be fixed by the decree.''^ Similar provi-
sions fixing the time for future application of the water exist in
the statutes passed in 1905, by some of the other States. The
Idaho statute in 1907 "^^ provides that the forfeiture for the statu-
tory period of non-use (five years) shall not apply to the matter
now under consideration.

Fourth, probably, until the appropriator's future needs have
become present needs, and the extra amount is actually used, others
may use the water temporarily.*^®

I 173. Saine. — -Upon the proper classification of this principle
which, adapting an expression of Judge Hawley's,''* we have called
^'appropriation for future needs," the cases are not always agreed.
We have considered it as a question of the amount of water which
an appropriator may hold against others. This follows the original
theory of appropriation as being complete on diversion and prima
fade to the amount of the capacity of the ditch, the question of
when actual use is or is not made being a question of waste and
abandonment. In the following quotations this point of view ap-
pears in such expressions as holding ''the water they had diverted
and taken to the place of intended use." On the other hand, it
is often considered as a question in the making of an appropria-
tion, on the theory that the appropriation is not complete until ac-
tual use is made. According to this view, the principles we have
given are to be classified as follows : The contemplation of the en-
largement is equivalent to. the bona fide intention required in
making an appropriation ; as to reasonable time, that is the element
of diligence ; as to temporary use of interveners, that is tiie principle
of relating back delayed to actual application instead of taking place
on diversion. This latter view of the proper place of the principle
appears in an Oregon case which says, ''The additional application
of water annually to meet the augmented demand causes the ap-

75 Stats. 1903, p. 223, sees. 1, 2, 6; 7S g|ee Seaward v. Pacific etc. Co.

sec. 1, as amended 1905, p. 357. * (Or.), 88 Pae. 963.
T6 Ihid., sec. 38. T9 Supra, sec. 172.

77 Stats. 1907, p. 507.
Water Bighto— 18

274 THE LAW OP APPROPRIATION. § 173

propriatioD to relate back to its inception, thereby cutting off all
intervening rights of adverse claimants to the use of the water.*'**
To the writer it seems an illustration of the theory that the
diversion completes the appropriation and the capacity of the
ditch is prima fade the amount thereof, but that waste or fail-
ure of beneficial use rebuts the prima facie case on the principles
of abandonment or forfeiture.

Some general quotations may be added. In Arnold v. Passa-
vant,^^ the appropriation was made for one hundred and eighty
acres, but only forty-five were cultivated at the time a later claim
was initiated. The prior claim for enough to irrigate one hundred
and eighty acres was upheld, the evidence being ''that he cultivated
his land and used water to irrigate it, as he and his partner got
money in their pockets." In Hall v. Blackman^ the court says:
''The history of irrigation in this State shows that the public lands
have generally been taken by poor men, and that they have not
in twenty years brought into cultivation one-half the land taken
by them, and if our irrigation laws required them to cultivate
all of their land in a very short time or lose the right to water that
they had diverted and taken to the place of intended use, it would
result in defeating the very purpose of the public land laws of
Congress and defeat most settlers in acquiring the right to the use of
sufiScient water to irrigate their lands." In Bodgers v. Pitt,®
Judge Hawley says: "The conditions [draining sloughs and
plowing sagebrush] on the land had to be changed in order
to apply the water claimed and appropriated to a useful and
beneficial purpose. It was part of the enterprise which Marker
had in view in making his appropriation. There is no principle of
law that required him under such circumstances to delay making
his appropriation until after he succeeded in draining the land
and putting it in a condition where it could be cultivated." Kin-
ney on Irrigation®* says: "We find that the rule is that he may
make an appropriation of all the water that he will need upon
his land, and that the fact that he does not make immediate use of
Ihe whole land will not destroy his priority of right if he continues

80 Seaward v. Pacific etc. Co. (Or.), 83 129 Fed. »32.

88 Pac. 963. 84 Sec. 668a. And see Long on Ir-

81 19 Mont. 275, 41 Pac. 400. ri^tion, sec. 48.
R2 8 Idaho, 272, 68 Pac. 19.

S 173 QUANTITY OP WATER. 275

the development of his land and makes a full use of his water right
within a reasonable time."

A recent Oregon case®^ says: **When an ordinarily prudent per-
.son makes a prior appropriation to irrigate arid land of which
he is the owner, or in the lawful possession expecting to acquire
title thereto, if such land will be benefited by irrigation, and the
volume of the stream is sufficient therefor, it is reasonable to sup-
pose that he has in mind both the extent of his land and the amount
of the water at the time of his appropriation, and that he intends
to reclaim the entire area thereof, either by the ditches constructed
at the time or by a canal system then in contemplation. But
pioneers on the public domain do not ordinarily possess great
wealth, and hence cannot rapidly convert arid land into farms;
and, such being the case, the law allows a reasonable time in which
to complete the appropriation. If the increase in the area of
arable land for the irrigation of which water has been diverted
varies with and is measured by the lapse of time, the additional
application of water annually to meet the augmented demand causes
the appropriation to relate back to its inception, thereby cutting
off all intervening rights of adverse claimants to the use of such
water.®^ What is a reasonable time in which to apply water
originally intended to be used for some beneficial purpose depends
upon the magnitude of the undertaking and the natural obstacles
to be encountered in executing the design."®^

We have discussed this point at some length because it is one
of unusual importance, and because it indicates the changes in-
troduced in fitting the law of appropriation to irrigation. It seems
to the writer one of the unconscious instances in which irrigation
has induced in the law of appropriation a tendency to adopt some
of the principles of the common law of riparian rights. It un-
donbtedly lessens the insistence upon actual use, when the right
may thus lie in abeyance for years without use, not unlike the way
it does at common law.

The present policy is to favor those who actually undertake to
settle in the hitherto unsettled regions and, toward them, to be

83 Seaward v. Pacific etc. Co. (Or.), Pac. 568; Smyth v. Neal, 31 Or. 105,

8S Pac. 963. 49 Pac. 850.

8C Citing Simmonfl v. Winters. 21 87 Citing Hindinan v. Rizor, 21 Or.

Or. 35, 28 Am. St. Rep. 727, 27 Pac. 112, 27 Pac. 13; Nevada Bitch Co. v.

7; Hindman v. Rizor, 21 Or. 112, 27 Bennett. 30 Or. 59, 85, 60 Am. St.

Pae. 13; Cole v. Logan, 24 Or. .304, 33 Rep. 777, 45 Pac. 472.

276

THE LAW OP APPEOPBIATION.

§ 174

liberal in enforcing the rule of beneficial use. Correspondingly
this liberality to the first settlers somewhat discourages later ar-
rivals; but irrigation actually undertaken is considered worth
more than later possibilities.

§ 174. Duty of Water. — ^Legislation has recently, in several
States^ specified the limit of beneficial use for irrigation at between
fifty and eighty acres per second-foot of water, and so fixed the
amount of water that can be allotted to each appropriator. In
Idaho the statute specifies one second-foot for fifty acres.^ In
Nebraska, New Mexico, Oklahoma, South Dakota and Wyoming,
it is one second-foot for each seventy acres.^ In North Dakota it is
one second-foot for each eighty acres.®® In Oregon the court, in
the absence of statute, has established a presumption that about
an inch per acre is sufScient, and figures that equivalent to about
forty acres per second-foot.®^

In Nevada the statute specifies three acre-feet per year.*^ This
measurement by volume, rather than by flow, is recommended by
many engineers.®^ Three acre-feet per year are equivalent to
about one second-foot for one hundred and sixty acres, or about
a miner's inch for each three acres.

In the report of the Department of Agriculture for 1896, Mr.
Newell, now head of the Reclamation Service, discusses the duty of
water, and shows that the amount of acres per second-foot now
allowed in most of these statutes is very generous as compared
with the practice in Southern California where the water serves
many more acres per second-foot than these statutes specify, and
such an amount in Southern California would be considered waste-
ful.®* The average for eleveil ditches in Utah was fifty acres per
second-foot.®*^ Results collected by the Office of Experiment Sta-

88 stats. 1903, p. 233; sec. 9, as
amended 1905, p. 174. Unless the
State Engineer otherwise specifics,
and subject to local customs anil
rules.

89 Nebraska, see statutes, infra;
New Mexico Stats. 1905, p. 270, sec. 4 ;
Oklahoma Statff. 1905, p. 274, c. 21,
sec. 29; South Dakota Stats. 1905, p.
201, c. 132, sec. 46; Stats. 1907, p.
373, sec. 47; Wyoming Rev. Stats.
872.

90 North Dakota Stats. 1905, p.
, sec. 49.

91 Gardner v. Wright (Or.), 91
Pac. 286. See, also. United States t.
Conrad Inv. Co. (Or.), 156 Fed. 136.

92 Nevada Stats. 1907, p. 30, see. 5.
This was first enacted Stats. 1903, p.
18, sec. 2; then repealed in Stats.
1905, p. 66; then re-enacted as above.

93 Infra, p. 731.

94 Report of U. S. Dept. Agric. for
1896.

95 Bulletin 124, Office of Exp. Sta.,
U. S. Dept. Agric, p. 32.

§ 175 QUANTITY OF WATER. 277

tioDs of the United States Department of Agriculture during tm
past few years show that on several canals in Montana the average
duty of water was nearly four feet in depth over the surface;
in Colorado, four feet; in Idaho, six feet; in New Mexico and
Washington, nearly eight feet; and in Wyoming for 1903, nearly
ten feet ; the general average for eleven Western States being over
five feet.®*

§ 176. Measurement of Water. — The original standard of
measurement was the miner's inch. The courts, however, do not
insist, aside from statute, upon any special mode of designation.
''That is certain which can be made certain; and if any particular
kind of water measurement has been in use in that locality, such
eustomaiy measurement would apply in a determination of the ex-
tent of plaintiff's ownership in the carrying capacity of the pipe-
line."*^

What constitutes a miner's inch varies in different localities.^
It is said of the California inch : ''The term 'miner's inch' is more
or less indefinite, for the reason that California water companies
do not all use the same head above the center of the aperture,
and the inch varies from one and thirty-six hundredths to one and
seventy-three hundredths cubic feet pej> minute each ; but the most
common measurement is through an aperture two inches high and'
whatever length is required, and through a plank one and one-half
inches thick. The lower edge of the aperture should be two inches
above the bottom of the measuring box and the plank five inches
high above the aperture, thus making a six-inch head above the
eenter of the stream. Each square inch of this opening represents
a miner's inch, which is equal to a flow of one and one-half cubic
feet per minute. " •• Of the Colorado inch it is said : " In Colorado
an 'inch' is the volume which will pass through an orifice one inch
square under a pressure of five inches, measured from the top
of an orifice, and varies somewhat with the number of inches sought

w Professor Samuel Fortier, in vt Collins v. Gray, 3 Cal. App. 723,

"Water and Forest" for July-Octo- 86 Pac. 893.

ber, 1906. Concerning the duty of 98 Dougherty v. Haggin, 56 Cal.

Water, see Gardner r. Wright (Or.), 522.

91 Pae. 286; TTnited States v. Conrad 00 Kent's Mechanical Engineer's

Int. Co. (Or.), 156 Fed. 180. Pocketbook, p. 18.

278

THE LAW OF APPROPRIATION.

S 175

to be measured; thirty-eight and four-tenths inches is the ac-
cepted equivalent of a cubic foot per second, however.'* *^

It has been held that the word *'inch" means such customar>'
inch as prevails in a given locality.^®* Statutory definitions of
** miner's inch" sometimes appear.*^ In Oregon it has been held
that when the record is silent as to the quantity of water intended
by the word **inch," it will be presumed to be measured under a
six-inch pressure.^^ In Idaho the statute provides for a four-inch
pressure.*^*

The designation by ''miner's inches" is falling into disuse, and,
instead, the ''second-foot" is taking its place; being a flow of one
cubic foot per second of time. This is now the statutory standard
generally .^^ The second-foot being the unit of flow, the unit of
volume is either one cubic foot,^^ or one acre-foot.*^ The ratio
between the miner's inch anct the second-foot is not always given
the same, owing to the variation in the meaning of miner's inch.
Thus, the second-foot is sometimes declared equal to fifty-nine in-
ches,*^ or to fifty inches,^^ or to forty inches,^^ or to thirty-eight
and four-tenths inches.**®

100 Bulletin 118, U. S. Dept. Agrie.
Exper. Sta., p. 73. See 2 M. A. S.,
see. 4643.

101 Collins V. Gray, 3 Cal. App. 723,
86 Pac. 983. See Carron v. V^ood, 10
Mont. 500, 26 Pac. 388.

102 Cal. State. 1901, p. 600: ''Sec-
tion 1. The standard miner's inch of
water shall be equivalent or equal to
one and one-half cubic feet of water
per minute measured through any
aperture or orifice. Section 2. All
acte or parts of acto inconsistent with
the provisions of this act are hereby
repealed.'' A similar act exists in
Montana. State. 1899, p. 117. Note,
however, that the California Civil
Code, section 1415, requires the meas-
urement to be under a four-inch pres-
sure, while the above statutory meas-
urement required is under a six-inch
pressure.

103 Gardner v. Wright (Or.), 91
Pac. 286; Morgan v. Shaw, 47 Or.
333, 83 Pac. 534; Bowman v. Bow-
man, 35 Or. 279, 57 Pac. 546.

108a Laws 1889, p. 380, sec. 1.

104 E. g.y Colorado, M. A. S. 2467;
Montana, Stats. 1907, p. 489, sec. 10;
Nebraska, Comp. Stats, 1903, sec.

6428; Nevada, Comp. Laws, 1900,
Stats. 1907, p. 30; New Mexico, State.
1905, p. 3>70, sec. 3; North Dakota,

Stete. 1905, p. , sec 47 ; Oklahoma,

Stats. 1905, !>. 274, c. 21, sec. 27;
South Dakota, Stats. 1905, p. 201, sec
44; Utah, Stets. 1905, c 108, see. 48;
Washington, Pierce's Codes, see.
8942; Wyoming Rev. Stats. 968.

105 E. g., Colorado, M. A. S. 2467.

106 E, g., Utah, Oklahoma, Sontb
Dakota, and New Mexico statutes just
cited.

107 Nebraska C^mp. Stats. 1903,
sec. 6428.

106 New Mexico, North Dakota and
South Dakota statutes, supra.

100 Montana State. 1907, p. 489.
sec. 10. The same is the equivalent
of the California Stetute of 1901,
page 600, quoted above. The same
wa9 also accepted in Gardner v.
Wright (Or.), 91 Pac 286. The Ari-
zona inch IS the same. • '

110 Colorado as given in Bulletin
118, U. S. Dept. Agric. Exper. Sta.,
p. 73, and enacted in 2 M. A. S., sec
4643.

§ 176

QUANTITY OP WATER.

279

One acre-foot equals 43,560 cubic feet, or 325,851 gallons."'

§ 176. Summary. — To sum up the rules concerning the amount
of water to which an appropriator is entitled :

The amount is limited to that originally claimed, as stated in the.
notice of appropriation or application for permit, or determined
by the general plan and purpose of the appropriator where the ap-
propriation is by actual diversion without notice, as still permitted
in California and the States that have not adopted irrigation codes,
and possibly also in them ; if the capacity of the ditch is less than
the amount claimed, then limited to the amount actually diverted,
which can never exceed the capacity of the ditch ; if less than both
the above is actually used, then to the amount actually used within
a reasonable time, several years being allowed an irrigator for ex-
pansion (but in California probably not more than five years, and
under irrigation codes usually less than five years), during which
time his priority to the unused amount is preserved, and later
comers can obtain only such temporary rights therein as will not
interfere with his use when ready.

In some States it has been provided by statute what quantity
of water shall be allotted for irrigation, being usually between fifty
and eighty acres per second-foot of fiow ; while in Oregon a similar
result is judicially reached by presumption without statute. There
is no such rule in California or Colorado.

m Speaking of the miner's inch, It
was recently held (Gardner v. Wright
(Or.), 91 Pac. 286): *'This designa-
tion, however, is not sufficiently def-
inite to be a safe guide at all times in
BBcertaining when the rights of a per-
son awarded a given number of inches
nnder six-inch pressure, etc., are being
invaded. Citing Wiel on Water
Rights, Ist ed., pp. 147, 175; NeweH's
(Practical) Irrigation, p. 128; Trout-
wine on Civil Engineering, p. 546;
Merriman's Treatise on Hydraulics
(1904), pp. 122, 123, 124 .... It
is evident that the only reliable
method by which any certain number
of inches of water, when awarded

under this method of measurement,
can always be determined, is on the
basis of what is termed by engineers
as 'second-feet,' or quantity of water
flowing past a certain point in a given
space of time. The ratio recognized
by the authorities cited and rule
quoted is that one inch of water
under six-inch pressure equals one-
fortieth of a 'second- foot' — ^that is,
forty miner's inches furnish a flonr
of water equal to one cubic foot
(seven and one-half gallons) per sec-
ond of time — ^which ratio we find sub-
stantially accurate, ' and will be
adopted here.''

THE LAW OF APPBOPBIATION. f 177

CHAPTER XI.

LIMITATIONS ON USB (CONTINUED)— LIMITATIONS ON
CHANGE OP MODE OP ENJOYMENT.

A. GENERAL PRINCIPLES.

§ 177. The right Ib independent of mode of enjoyment.
S 178. No injury to others.

B. CHANGE OF MEANS OF USE.

§ 179. QhAnge of means of use.
§ 180. Changes in ditches.

C. CHANGE OF POINT OF DIVERSION.

§ 181. Point of diversion may be changed.
S 182. Statutory procedure.
S 183. Same.

D. CHANGE OF PLACE OF USE.
§ 184. Change of place of use.
§ 185. Statutory procedure.
S 186. Change on sale of water right.

E. CHANGE OF PURPOSE OF USE.
S 187. Change of purpose.

A. GENERAL PRINCIPLES.

§ 177. The Bight is Independent of the Mode of Enjoyment.—

By appropriating a stream the law has always considered that a
right of property was conferred, and being property, the owner
may enjoy it as he will, so long as he does no injury to others, just
as he may a farm or a horse or other property. The law, hence, has
always regarded the right as independent of means or place or
purpose of use or of point of diversion. The litigation upon this
question has always been addressed to the contention that the
right was limited to its initial mode of enjoyment, and that a
change forfeits priority and can only be made by new appropria-
tion. The decisions now passed into legislation, almost universally,
and with but a few exceptions, decided against the contention,
and have settled the rule that change of means, place, or purpose
of use or of diversion does not forfeit priority. **A priority to

S 177 CHANOE OF MODE OF ENJOYMENT. 281

the use of water is a property right which is the subject of purchase
and sale, and its character and method of use may be changed,
provided such change does not injuriously affect the right of
others. "1

The law to this effect took its shape very early. It was early de-
cided that the place of use may be changed without loss of priority.
It was absolutely necessary in the early California mining days,
when the law of appropriation arose and when new ground was
being continually opened up. In Maeris v. Bicknell ^ it was held
that branches could be run to new mining claims without loss of
priority, and that the main ditch itself could be extended to new
localities. The right to change the place of use was hence first
established. In reliance on this case and others following it, it
was next held in Eidd v. Laird ' that the point of diversion or tak-
ing the water could likewise be changed. These two decisions were
relied on in all jurisdictions, and passed into statutes.^ The right
to change the purpose of use has always been assumed to follow
from these two cases and those following them, rather than having
ever been actually independently decided.

The right is hence independent of point of diversion and of
manner, place or purpose of use. As to the point of diversion,
that Wyoming court said: ^ *'We are not aware of any rule which
restricts as to location the point of diversion in initiating an ap-
propriation, except the probable requirement that it be so located
as to render the proposed diversion feasible in view of the in-
tended use, and possibly that, if the proposed point of diversion
be situated upon lands of another, the appropriator shall secure
a right of way for his ditch or works to be constructed on such
lands.* So far as the mere right of appropriation is concerned,
no obligation is imposed upon a party to divert the water at the
nearest poaedble point to his land or within any particular district. "
As to the place of use, the Colorado court said :'' ' ' In the absence
of legislation to the contrary, we think that the right to water ac-
quired by priority of appropriation thereof is not in any way
dependent upon the lacus of its application to the beneficial use

^ Seven Lakes etc. Co. v. New 5 Willey v. Decker, 11 Wyo. 496,

Uteland etc. Co. (Colo.), 93 Pac. 485. 100 Am. St. Bep. 939, 73 Pac. 210.

2 7 CaL 261, 68 Am. J>ee. 857. « Cf. sec. 81, ante.

3 15 CaL 161, 76 Am. Dec. 472. Coffin v. Left Hand Ditch Co., 6
* For example, Cal. Civ. Code, sec. Colo. 443.

1412; see citations below.

282 THE LAW OF APPROPRIATION. ( 178

designed. And the disastrous consequences of an adoption of the
rule contended for forbid our giving such a copstruction to the
statute as will concede the same, if they will properly bear a more
reasonable and equitable one." As to purx>06e of use, and as a
concise statement of the view of the law upon the general inde-
pendence of the right upon its mode of enjoyment, the following
case is one of the earliest and most explicit, and an authority
usually relied on in later cases:

*' Suppose a party taps a stream of water for the purpose of sur-
face mining in a given locality, and afterward finds that the ground
will not pay or that ground farther on will pay better, may he not
abandon the former and extend his ditch to the latter without
losing his priority t Or, suppose, after working off the surface,
he finds quartz, may he not erect a mill and convert the water into
a motive power without forfeiting his prior right! Suppose he
appropriates the water for the purpose of running a sawmill, and,
after the timber is exhausted, he finds that a gristmill will pay —
may he not convert the former into the latter without surrendering
his priority to some one who may havQ subsequently and in the
meantime, tapped the stream t

''We think all this may be done, and are unable to suggest a
plausible reason why it may not. In cases like the present, a party
acquires a right to a given quantity of water by appropriation and
use, and he loses that right by non-use or abandonment. Appro-
priation, 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 appro-
priation, he becomes entitled to the use of the quantity which he has
appropriated at any place where he may choose to convey it, and
for any useful and beneficial purpose to which he may choose to
apply it. Any other rule would lead to endless complications, and
most materially impair the value of water rights and privileges." ^

§ 178. No Injury to Others. — ^The law, being thus addressed
to the preservation of the prior right, at the same time inhibits
any invasion of the rights of others existing at the time of the
change. ''Sic utere tuo ut alietvam non laedas" is an old maxim
of the law. No change can be made to the disadvantage of existing
appropriators or, under the California doctrine, of existing riparian

8 Davis V. Gale, 32 Cal. 34, 91 Am. Dec. 554.

§ 178

CHANGE OF MODE OF ENJOYMENT.

283

proprietors. They have acquired vested rights in the stream or
neighboring land which receive full protection against later acts
of the prior appropriator.® Consequently, a change in place of
diversion, place of use, or purpose of use, which necessitates, for
example, the diversion of an additional quantity of water, is not
permitted as against existing claimants on the stream.^^ An ap-
propriator, when the stream becomes clogged up with debris, cannot
raise his dam (which is equivalent to. moving his point of appro-
priation up stream) if the water thereby is caused to flood mining
claims above.^^ The rule is stated in Hargrave v. Cook,^^ as fol-
lows : ''He may change the point of diversion to another place upon
the servient tenement ; he is nevertheless limited in so doing to the
exigencies of the situation, and has no right to make such change
arbitrarily and at will. He may do so when under certain cir-
cumstances it is required to enable him to take the amount of
water to which he has ownership, but then only when 'others are not
injured by the change. * ^^ His rights are the rights of the grantee
of an easement, and extend, in the matter of changing the point of
diversion, no further than the boundaries of the servient tene-
ment, and even when entering upon this he is under obligation
only to make reasonable changes with reasonable care, and also
to repair, so far as possible, whatever damage his labors may have
occasioned ; ^^ as to lands other than those subject to his easement,
and as to other claimants and owners, he can make no change
at all which injuriously affects them or their rights. ' '

The consent of the party injured will remove the objection.^^
The burden of showing that the change injures others is upon those
opposing the change.^® The person injured must be a party to the
suit to make the point material. An injury to strangers to the suit,
such as other water users at points intermediate on the stream be-

9 See ante, c. III.

10 Ortman v. Dixon, 13 Cal. 33 ; Mc-
Donald V. Bear River Co., 13 Cal. 220;
McKlnney v. Smith, 21 Cal. 374;
Davis V. Gale, 32 Cal. 26, 91 Am. Dec.
554; Nevada etc. Co. v. Powell, 34
CaL 109, 91 Am. Dee. 685; Higgins v.
Barker, 42 Cal. 233 ; Santa Paula etc.
Works V. Peralta, 113 Cal. 38, 45 Pac.
168; Smith v. Corbit, 116 Cal. 587, 48
Pae. 725; Pomeroy on Riparian
Rights, sec. 79.

11 Nevada etc. Co. v. Powell, 34
Cal. 109, 91 Am. Dec. 68o.

12 108 ual. 72, at 80, 41 Pac. 18.

13 Citing Civ. Code, sec. 1412.

1^ Citing Qale and Whately on
Easements, 235.

15 Crescent etc. Co. v. Montgomery,
143 Cal. 248, 76 Pac. 1032. Consent
to change. point of diversion. Miller
v. Douglas, 7 Ariz. 41, 60 Pac. 722.

10 Jacob v. Lorenz, 98 Cal. 332, 33
Pac. 119.

284

THE LAW OF APPROPRIATION.

S 178a

tween the old and new places of diversion or use, cannot be con-
sidered.*^

No change will be permitted to result in any greater draft upon
the river than before the change, and the use after the change
is in all ways measured and fixed (where it conflicts with existing
owners) by the same limitations which the law would impose upon
its use before the change.*® •

The mere fact of use of more land does not show the inhibited
injury to othens since consistent with a more efficient use of the
same amount of water.**

The limitation against injury to others has now universally passed
into statutes in all States; for example, in sections 1412, 1415 of
the California Civil Code, where changes are authorized ''if others
are not injured by such change. ' ' The limitation is taken from the
original cases of Maeris v. Bicknell and Kidd v. Laird, above re-
ferred to. • .

§ 178a.« In appl3ring the limitation thus generally stated that
no rights existing at the .time the change is made must be injured,
there are numerous cases holding that the rights contemplated by
the rule are those of other appropriators on the same natural
stream; it does not contemplate the claims (which are bare claims
and cannot ripen into a right) of those using the waste disehaige
from ditches or other artificial watercourses. In the stream itself i

17 Infra, sees. 182, 187, 196. '

18 Seven Lakes etc. Co. v. New
Loveland etc. Co. (Colo.), 93 P&c. 485.
In a Colorado case (Baer etc. Co. v.
Wilson (Colo.), 88 Pac. 265): "If
appellant was the only appropriator,
it would have the right to change the
point of diversion or place of use of
the water as frequently as desired,
because there would be none having
rights which might be affected; but,
when a subsequent appropriator makes
his diversion, he acts under the belief
that the water appropriated by his
senior will continue to be used as it
was at the time of the making of the
appropriation of the junior. So a
subsequent appropriator has a vested
right as against his senior to insist
upon the continuance of the conditions
that existed at the time he made his
appropriation." Citing Handy Ditch

Co. V. Louden Canal Co., 27 Colo. 515,
62 Pac. 847.

10 Fulton etc. Co. v. Meadow etc.
Co. (Colo.), 86 Pac' 748. Citing
Platte Valley Irr. Co. v. Central Tmst
Co., 32 Colo. 102, 75 Pae. 391; Pt
Lvon Canal Co. v. Chew, 33 Colo. 392,
81 Pac. 37; Cache La Pondre L Co. v.
L. k W. B. Co., 25 Colo. 144, 71 Am.
St. Bep. 123, 53 Pac. 318. And say-
ing: "The mere fact that it is the in-
tention of appellee to apply the water,
diverted from its original headgate
into the new headgate and new ditch,
upon a larger acreage, does not even
presumptively establish that more
water, measured in time or quantity,
will be used than was diverted thronifh
the original headgate, nor will it pre-
sumptively establish injury to the ves-
ted rights of others. ' *

9S 179, 180 CHANGE OP MODE OF ENJOYMENT. 285

later comers have a right to a use and flow — a continuance of the
natural flow to the extent of their appropriation; in the waste
from a ditch lower claimants have no right beyond the very
particles of water as they come down, with no right to the con-
tinuance of the discharge ; a change of place of use, causing the dis-
charge to cease, gives them no ground for complaint.

A difficulty arises, however, where the water from a ditch is
discharged back again into the natural stream. All the justice
seems on the side of considering lower rights as though the dis-
chai^e were a natural tributary of the stream. To cease the dis-
charge or change its place to the injury of lower claimants on the
natural stream should, in justice, be considered as a diversion of
a tributary and wrongful. A change of place of diversion or use
cannot be made to the injury of lower claimants of any kind on the
natural stream, though lower claimants to the waste from a ditch
alone may be ignored.^

B. CHANGE OF MEANS OF USE.

§ 179. Ghange of Means of Use. — It has been said that the
appropriator may use the water in any manner necessary to carry,
out the use for which it was appropriated.^* In all branches of the
law of waters it is immaterial whether the use is in steam boilers,
by hydraulic rams, in flumes or pipes, or appliances of whatever
kind.^ The means of use may be changed so long as "no one is in-
jured in making the change.^ That is, the priority is not lost ; and
whether the change can be made rests on whether the acts done
in making it would be lawful under the general law, if done in any
other connection.

§ 180. Changes in Ditches.— As the right to the ditch or other
artificial watercourse is an easement, no change can be made that

20 See flee. 156, supra; infra, sees. 137 Cal. 214, 69 Pac. 1011; Mmer etc.
184, 233. V. Bickey, 127 Fed. 573; Thomas v..

21 Stone V. Bumpus, 46 Cal. 218: Guirand, 6 Colo. 530; Pomeroy on
Abbott ▼. Pond, 142 CaL 393, 76 Pac. Biparian Bights, sec. 50.

60; Thomas v. Ouiraud, 6 Colo. 533. 28 Cfel. Civ. Code, sec. 14i5; Char-

22 Charnock v. Higuerra, 111 Cal. nock v. Higiierra, 111 Cal. 473, 52 Am.
473, 52 Am. St. Bep. 195, 44 Pac. 171, St. Bep. 195, 44 Pac. 171, 32 L. B. A.
32 L. B. A. 190 ; Coleman v. Le Franc, 190.

286

THE LAW OF APPROPRIATION.

§ 180

is burdensome to the servient tenement, or that changes the char-
acter of the servitude. At the present day it is important to note
that consequently a ditch cannot be changed to a pipe-line, be-
cause it is held to be a material change in the character of the servi-
tude.^^ And, in general, a change that is to the disadvantage of
the servient tenement cannot be made without permission.^

In a case decided by the supreme court of California* it is said :
''We need not here discuss the question as to whether defendants
might lawfully have constructed a ditch of the same size as their
flume along their flume line.*^ They constructed this ditch upon
another line, and for this purpose they appropriated to their use
different land of plaintiff. The precise location of the right of way
had been as definitely and finally fixed by the acts of the defend-
ants as it would have been had the metes and bounds been set forth
in an instrument of grant.^ Defendants had acquired the right to
that precise location and no other. The remainder of plaintiff's
land was his, free from any right of defendants. We know of no
principle of law that would warrant defendants in subjecting,
without his consent, another and different portion of his land to
their use, even although they abandoned their former location.
It is elementary that the location of an easement of this character
cannot be changed by either party without the other's consent, after
it has once been finally established, whether by the express terms
of a grant, or by acts of the parties tantamount in their effect.^
The granting of a right over one portion of a person's land gives
the grantee no right over any other portion. Where such a grantee
attempts to exercise his right over some other portion, by subjecting
such portion to his use, without the consent of the owner, he de-
prives the owner of the free use and possession thereof, and his

24 Allen V. San Jose Water Co., 92
Cal. 138, 28 Pac. 215, 15 L. R. A. 93;
Oliver v. Agasse, 132 Cal. 297, 64 Pac.
401. Contra, Bean v. Stoneman, 104
Cal. 49, 37 Pac. 77", 38 Pac. 39.

25 Burris v. People's Bitch Co., 101
Cal. 248, 37 Pac. 922; Joseph v. Ager,
108 Cal. 517, 41 Pac. 422; Jacob v.
Day, 111 Cal. 571, 44 Pac. 243; North
Fork etc. Co. v. Edwards. 121 Cal.
662, 54 Pae. 69; Los Angeles v. Pom-
eroy, 125 Cal. 420, 58 Pac. 69; Vestal
V. Young, 147 Cal. 715, 721, 82 Pac.
381, 383; Kern etc. Co. v. Bakersfield

(Cal.), 90 Pac. 1052; Colegrove etc
Co. V. Hollywood (Cal.), 90 Pac. 1053.

26 Vestal V. Young, 147 Cal. 715,
721, 82 Pac. 38., 383.

27 Saying, **See, however, Allen v.
San Jose Land & Water Co., 92 Cal.
138, 28 Pac. 215, 15 L. R. A. 93; Bar-
rows V. Pox, 98 Cal. 63, 66, 32 Pac.
811.''

28 Saying, **See 14 Cyc. Law & Pr.,
pp. 1161, 1205."

29 Saying, *'^Bee Jaqui v. Johnson,
27 N. J. Eq. 526, 552.*'

S 180 CHANGE OF MODE OF ENJOYMENT. 287

acts, if continued the requisite time, will ripen into an easement, and
the owner will be permanently deprived of his property. That such
a result injuriously affects the rights of the owner cannot well
be questioned. As was said in Burris v. People's Ditch Co. : ^ * It is
well settled that the owner of an easement cannot change its char-
acter, or materially increase the burden upon the servient estate, or
injuriously affect the rights of other persons.' It is entirely im-
material in this connection that the new line was only from one to
twenty feet distant from the old line. It was- upon property of
plaintiff over which defendants had no right whatever, and the prin-
ciple is the same as if the new line had been hundreds of feet from
the old one." A later case states the same principle and says:
**The laying of pipe on a new line, or the substitution of pipe
for a ditch or wooden conduit, or for pipe of a smaller size, was
therefore not authorized by the mere fact that water had already
been conducted across the highway in another manner."**

An enlargement of a ditch cannot be made if it increases the
burden of the servient tenement.^^ As against persons other than
the landowner no change can be made to their injury, either. For
example, reservoirs cannot be added to an irrigation system if there-
by other appropriators will suffer injury.^

The ditch owner, likewise, cannot be forced to make a change
by the landowner. The latter cannot force the former to substi-
tute a pipe-line for his ditch,** even though the pipe-line would be
a more efficient way of handling the water, minimizing loss in
transmission.^

Changes that do not work to the injury of the rights of others
may, however, be made.^ A change in a dam is permissible if no
injury to others result.^ And a new ditch may be substituted
for an old one if exactly similar and in the same position and no
damage results.^

30 104 Cal. 248, 37 Pac. 922. 34 Gregory v. Nelson, 41 Cal. 278.

31 SlosB, J., in Colegrove etc. Co. v. ae Barrows v. Fox, 98 Cal. 63, 32
Hollywood, 151 Cal. 425, 90 Pac. 1053. p^c. gll.

32 Board .etc. v. Hutchinson, 46 Or. . ' f^^i ni^ ^»« i« „«« ^A^r:
57, 78 Pac. 1028. "* ^^^- ^''- ^""'^^^ ^''' ^*^^-

33 Colorado etc. Co. v. Larimer etc. '^^ Seaward v. Pacific etc. Co. (Or.),
Co., 26 Colo. 47, 56 Pac. 185; New «8 Pac »«3.

Loveland etc. Co. v. Consolidated etc. JW Greer v. Heiser, 16 Colo. 306,

Co., 27 Colo. 525, 62 Pac. 366, 52 26 Pac. 770.
L. B..A. 266.

268

THE LAW OP APPBOPBIATION.

9 181

C. CHANGE OP POINT OF DIVEBSION.

§ 181. Point of Diversion may be Changed. — ^A change of
point of diversion may be made if done without injury to the rights
of others (a question of fact), otherwise not.^

The appropriatojr may have a double point of diversion. He
may use a main flume and a branch flume above, as his business
requires, sometimes diverting the water by one, and sometimes by
the other.^ An appropriator having rights on two creeks can-
not be required to exhaust his rights on one before using the other >^

J» Arizona. — Miller v. Douglas, 7
Ariz. 41, 60 Pac. 722.

California. — ^Kidd v. Laird, 15 Cal.
116, 76 Am. Dec. 472, is the leading
case. The other California cases are
cited under ' ' change of place of use, ' '
as the decisions have usually treated
the two questions together. Civ. Code,
1412, 1415.

Colorado. — Bear etc. Co. v. Wilson
(Colo.), 88 Pac. 265; Wadsworth etc.
Co. V. Brown (Colo.), 88 Pac. 1060;
Crippen v. Glascow (Colo.), 87 Pac.
1073; Coffin v. Left Hand Ditch Co.,
6 Colo. 443; Thomas v. Guiraud, 6
Colo. 530; Sieber v. Frink, 7 Colo.
148, 2 Pac. 901; Hammond v. Rose,
11 Colo. 524, 7 Am. St. Bep. 258, 19
Pac. 466; Puller v. Swan Biver Min.
Co., 12 Colo. 12, 19 Pac. 836; Strick-
ler v. Colorado Springs, 16 Colo. 61,
25 Am. St. Bep. 245, 26 Pac. 313;
Greer v. Heiser, 16 Colo. 306^ 26 Pac.
770; Wyatt v. Larimer etc. Co., 1
Colo. App. 480, 29 Pac. 906 ; Nichols
V. Mcintosh, 19 Colo. 22, 34 Pac. 280;
Knowles v. Clear Cr. etc. Co., 18- Colo.
209, 32 Pac. 279; Cache La Poudre
etc. Co. V. Water etc. Co., 25 Colo.
161, 71 Am. St. Bep. 131, 53 Pac.
331, 46 L. B. A. 175; Handy D. Co.
V. Louden L C. Co., 27 Colo. 616, 62
Pac. 847; New Oache La Poudre etc.
Co. V. Water etc. Co., 29 Colo. 469,
68 Pac. 781; Fluke v. Ford, 35 Colo.
112, 84 Pac. 469; Hallett v. Carpen-
ter, 37 Colo. 30, 86 Pac. 317; New
Cache etc. Co. v. Arthur etc. Co., 37
Colo. 530, 87 Pac. 799; Bobertson v.

Wilmath (Colo.), 90 Pac. 95; Lower
Latham Co. v. Bijou Co. (Colo.), 93
Pac. 483; 3 MUls' Ann. Stots., 2d
ed., sees. 2273d-2273f.

Idaho.— m\\ V. Standard Min. Co.,
12 Idaho, 223, 85 Pac. 907; Walker
V. McGinness, 8 Idaho, 540, 69 Pac.
1003 ; Hard v. Boise etc. Co., 9 Idaho,
589, 76 Pac. 331, 65 L. B. A. 407.

Montana. — Columbia M. Co. v. Hol-
ter, 1 Mont. 296 ; Aider Gulch etc. Co.
V. Hayes, 6 Mont. 31, 9 Pae. 581;
Meagher v. Hardenbrook, 11 Mont.
385, 28 Pac. 451 ; Middle Cr. D. Co.
V. Henry, 15 Mont. 558, 39 Pac. 1054;
Hays V. Buzard, 31 Mont. 74, 77 Pac.
423.

Nebraska. — Rirmers' etc. Co. v.
Gothenburg etc. Co. (Neb.), 102 N.
W. 487.

Nevada. — Smith v. Logan, 18 Nev.
149, 1 Pac. 678; Barnes v. Sabron, 10
Nev. 217.

Oregon. — ^Tolman v. Casey, 15 Or.
83, 13 Pac. 669; Cole v. Logan, 24
Or. 304, 33 Pac. 568; Bolter v. Gar-
rett, 44 Or. 304, 76 Pac 142.
• Utah. — Hague v, Nephi Irr. Co., 16
Utah, 421, 67 Am. St. Bep. 634, 62
Pac. 765, 41 L. B. A. 311.

Statutes to this effeet are cited
under change of plaoe of use, sees.
184, 186, infra, since the statutes,
like the decisions, usually consider the
two questions together.

40 Hobart v. Wicks, 15 Nev. 418.

41 Norman v. Corbley, 32 Mont.
195, 79 Pac. 1059.

f 182

CHANGE OF MODE OF ENJOYMENT.

889

The point of diveision cannot be changed if the change will injure
others.^ Subsequent appropriators are entitled to as much pro-
tection against change in point of diveraion by others as are prior
appropriators.^ In the case ju$t cited, the right to change the
point of diyeraion two miles and a quarter up creek was refused.
In one case it is said : ^ ' ' This court has repeatedly held that an
appropriator could not change* his place of diyerBion of the waters
of any stream, if such change in any manner affected a lower ap-
propriator of. the waters of such stream, even though the lower
appropriator be subsequent in right. The reasons of such conclu-
sion, it seems to us, are well founded. Where the lower appro-
priator makes his appropriation, he has the right to assume the
upper appropriator will continue the use of the water as he found
it, and if any change would damage him in the use of his appro-
priation, the courts will protect him in his rights.'*

§ 182. Statutory Procedure. — ^In Colorado ^ there is a special
statutory provision *• which requires application to court before the
change of place of diversion or use is made, and is based on analogy
to the special proceedings; for the adjudication of water rights
hereafter ^^ discussed. This statutory procedure governing change
in point of diversion has been upheld,^ even as to rights existing
at the date of passage of the act or in course at that time, and is not
unconstitutional in so doing.'*^ The procedure for change of point
of diversion must be followed before the change, though made be-
fore the act, will receive legal recognition,^ and is* not un-
constitutional on that account.*^^ Under it, priority of right
may at the same time be ascertained, and water rights set-
tled in the same proceeding,^^ but not, it has been held, the ques-

^ Oases in preceding list. Walker
V. McGinness, 8 Idaho, 540, 69 Pac.
1003; Oolambia Min. Co. v. Holter,
1 Mont. 296.

« Baer etc. Co. v. Wilson (Colo.),
88 Pac. 265.

44 Hill V. Standard Min. Co., 12
Idaho, 223, 85 Pac. 907.

45 For list of citations see last sec-
tion.

46 3 M. A. 8., 1905 ed., 2273d et
seq.

47 Section 398.

Water Rights — 19

48 New Cache La Poudre etc. Co.
V. Water Supply etc. Co., 29 Colo.
469, 68 Pac. 781.

40 New Cache La Poudre etc. Co.
V. Water Supply etc. Co., 29 Colo.
469, 68 Pac. 781; Fluke v. Ford, 35
Colo. 112, 84 Pac. 469.

30 New Cache La Poudre etc. Co.
V. Arthur Irr. Co., 37 Colo. 530, 87
Pac. 799; Ashenfelter v. Carpenter.
37 Colo. 534, 87 Pac. 800.

52 Hallett V. Carpenter, 37 Colo. 30,
86 Pac. 317.

290

THE LAW OP APPBOPBIATION.

§ 183

tion of abandonment.^ The right to make the change cannot be
tested in different proceedings, such as an action to quiet title,^
or by making the change and then seeking to enjoin the water com-
missioner from interfering.^ In a proceeding by a landowner to
change his point of diversion to a point higher up on the stream,^
owners of land below the i>oint of the original intake- cannot object
that the owners of lands between the old and new point of diversion
have been injuriously affected by the change.^'' The change may be
decreed from one district to another district, and defendants will
not be heard to say that users in an intervening district, strangers
to the action, might be injured thereby.^

The Colorado statute^ providei^that, if it shall appear that the
rights of others might be injuriously affected, the court shall decree
the change upon terms and conditions which would prevent such
injurious effect.**

The Colorado procedure for changing point of diversion has for
its object to allow a remedy by protests in advance of injury.^
At the same time, if the decree is conclusive, it defeats the remedy
where the injury cannot be seen in advance. ''The change of the
point of diversion under these (Colorado) statutes has already pro-
duced considerable litigation, and presents most interesting and im-
portant questions for solution." ^ The statute is strictly remedial
only, the right to make the change where others are not injured
having existed in Colorado, as elsewhere, long before the passage
of the statute.**

Reference should also be made to Part IV of this book concern-
ing the Adjudication of Bight.

§ 183. Same. — ^Under the recent Irrigation Codes, the appro-
priator is usually required by statute to apply to the State En-

53 Lower Latham Co. v. Bijou Co.
(Colo.), 93 Pac. 483.

M Fluke V. Ford, 35 Colo. 112, 84
Pae. 469.

09 New Cache La Poudre etc. Co.
V. Arthur etc. Co., 37 Colo. 530, 87
Pac. 799.

M As authorized by Colorado Laws
of 1903, p. 278.

»7 Crippen V. Glascow (Colo.), 87
Pac. 1073. See sec. 196, infra.

58 Lower Latham Co. t. Bijou etc.
Co. (Colo.), 93 Pac. 483.

50 SesB. Laws 1903; p. 278, 42. 124.

eo See Wadsworth v. Brown (Colo.),
88 Pac. 1060, holding that the statu-
tory procedure for change of point
of diversion applies to mutual ditcb
companies.

•1 Crippen V. Glascow (Colo.), 87
Pac. 1073.

62 Mills' Irrigation Manual, p. 68.

68 Lower Latham etc. Co. v. Bijou
etc. Co. (Colo.), 93 Pac. 483.

§ 184

CHANGE OP MODE OP ENJOYMENT.

291

gineer for a permit before changing the point of diversion. The
State Engineer is then required to publish nature of the applica-
tion and to hear any protests or contests of those who claim they
will be injured, and to make his decision accordingly.^ A statute
requiring the appropriator to obtain the permission of the Board
of Irrigation befoi^e changing place of diversion or use has been
upheld in Nebraska.®*^

The difficulty with this and the Colorado statutory procedure
is in the very thing they seek to accomplish, viz., a determination
in advance of the change. Such, however, owing to the lack in men
of even the highest training, of the gift of prophecy, is bound, in
some eases, to turn out impossible. When the State Engineer has
issued the permit for the change, and it turns out that he erred in
thinking no one would be injured, then recourse must be open to
the courts' to protect the injured party, as the only way of holding
the statute constitutional.^

D. CfHANGE OP PI^ACE OP USE.

§ 184. Change of Place of Use. — The place of use may be
changed if others are not thereby injured.®^

M B«ference8 to these statutes will
be foasd in Part VI, below.

«5 Parmers' etc. Co. v. Gothenberg
etc. Co. (Neb.), 102 N. W. 487.

« Trade Dollar Co. v. Fraser, 148
Ped. 587.

w AriBona. — ^Biggs v. Utah Irr. Co.,
7 Ariz. 331, 64 Pac. 494.

California. — The following decisions
uphold change of place of use, and
several of them at the same time in-
volve change of means, and purpose
of use, and change of point of diver-
sion. Maeris v. Bicknell, 7 Cal. 261,
68 Am. Dec. 257; Ortman v. Dixon,
13 Cal. 33; McDonald v. Bear Biver
Co., 13 Cal. 220; Kidd v. Laird, 15
CaL 161; McKinney v. Smith, 21 Cal.
374; Bntte Table Mountain Co. v.
Morgan, 19 Cal. 609; Davis v. Gale,
32 Cal. 26, 91 Am. Dec. 554; Junk-
ans v. Bergin, 67 Cal. 267, 7 Pac.
684; Ware v. Walker, 70 Cal. 591,
12 Pac. 475; Bamelli v. Irish, 96
Oa. 214, 31 Pac. 41; McGuire ▼.

Brown, 106 Cal. 660, 39 Pac. 1060,
30 L. B. A. 384; Hargrave v. Cook,
108 Cal. 72, 41 Pac. 18, 30 L. B. A.
390; Chamock v. Higuerra, 111 Cal.
473, 52 Am. St. Bep. 195, 44 Pac.
171, 32. L. B. A. 190; Santa Paula
etc. Co. V. Peralta, 113 Cal. 38, 45
Pac. 168: Smith v. Corbit, 116 Ca).
587, 48 Pac. 725; San Luis etc. Co.
V. Estrada, 117 Gal. 168, 48 Pac.
1075; Yineland etc. Co. v. Azusa etc.
Co., 126 Cal. 486, 58 P&c. 1057, 46
L. B. A. 820; Beyers v. Colonial etc.
Co., 134 Cal. 553, 66 Pac. 732 ; Craig
V. Crayton etc. Co., 141 Cal. 178, 74
*Pac. 762; Southern CkL etc. Co. v.
Wilshire, 144 Cal. 68, at 72, 77 Pac.
767; Southside etc. Co. v. Burson, 147
Cal. 401, 81 Pac. 1107.

Colorado. — Coffin v. Left Hand D.
Co., 6 Colo. 443; Thomas v. Guiraud,
6 Colo. 530; Hammond v. Bose, 11
Colo. 524, 7 Am. St. Bep. 258, 19
Pac. 466; Fuller t. Swan Biver etc.
Co., 12 Colo. 12, 19 Pac. 836; Striek-

292

THE LAW OF APPROPRIATION.

9 IH

The change may be from one portion of one's land to another,
as well as to different land.**

The M'ater may be changed from use under one watershed to use
in Bji entirely different watershed. In a Colorado ease** the ap-
pellee claimed to have appropriated certain water from St. Vrain
Creek, through its diversion by means of a ditch which conducted
the water to the James Creek, thence along the bed of the same to
Left Hand Creek, where it was again diverted by lateral ditches,
and used to irrigate land adjacent to the last-named stream. It was
contended that such appropriation was unlawful. But the court
upheld it.

ler V. City Ciolo. Springs, 16 Colo. 61,
25 Am. St. Rep. 245, 26 Pac. 313;
Greer y. Heiser, 16 Colo. 306, 26 Pae.
77^; Wyatt v. Larimer Co., 1 Colo.
App. 480, 29 Pac. 906; Nichols v.
Mcintosh, 19 Colo. 22, 34 Pae. 280;
Knowles v. Clear Creek etc. Co., 18
Colo. 209, 32 Pac. 279; Larimer Co.
V. Cache La Poudre Irr. Co., 8 Colo.
App. 237, 45 Pac. 525; Cache La
Poudre Co. v. vVater -Sup. Co., 25
Cblo. 161, 71 Am. St. Rep. 131, 53
Pac. 331, 46 L. B. A. 175; King v.
Ackroyd, 28 Colo. 488, 66 Pac. 906;
City of Telluride v. Davis, 83 Oolo.
355, 108 Am. St. Rep. 101, 80 Pac.
1051; Town of Sterling v. Pawnee
Co. (Colo.), 94 Pac. 431.

Idalio. — Mahoney v. Neiswang^, 6
Idaho, 750, 59 Pac. 561; Hard v.
Boise City Irr. 4b L. Co., 9 Idaho, 589,
76 Pac. 331, 65 L. R. A. 407.

ifofitana.— 'Woolman v. Garringer,
1 Mont. 535; Meagher v. Harden-
brook, 11 Mont. 385, 28 Pac. 451;
Middle Cr. D. Co. v. Henry, 15 Mont.
558, 39 Pac. 1054; Gassert v. Koyes,
18 Mont. 216, 44 Pac. 959; Power v.
Switzer, 21 Mont. 523, 55 Pac. 32;
Smith T. Denniff, 24 Mont. 20, 81
Am. St. Rep. 408, 60 Pac. 398, 50
L. R. A. 741; Hays v. Buzard, 31
Mont. 74, 77 Pac. 423.

Nebraska, — Farmers' Irr. Co. ▼.
Gothenburg Irr. Co. (Neb.), 102 N.
W. 487.

Nevada, — Smith v. Logan, 18 Nev.
149, 1 Pac. 678; Union etc. Co. v.
Dangberg, 81 Fed. 73.

New Mexico, — Trambley v. Luter-
man, 6 N. Mex. 15, 27 Pac. 312.

Ortf^oH.—- Wimer v. Simmons, 27 Or.
1, 50 Am. St. Rep. 685, 39 Pac. 6;
Nevada Ditch Co. v. Bennett, 30 Or.
59, 60 Am. St. Rep. 777, 45 Pae. 472.

t7 toft.— Elliott V. Whitmore (Utah),
24 Pac. 673; Hague y. Nephi L Co.,
16 Utah, 421, 67 Am. St. Rep. 634, 52
Pac. 765, 41 L. R. A. 311.

Washington. — Thorp v. Tenem Ditch
Co., 1 Wash. 566, 20 Pac. 588.

Wyoming, — Willey v. Decker, 11
Wyo. 496, 100 Am. St. Rep. 939, 73
Pac. 210; Johnston ▼. Little Hone
etc. Co., 13 Wyo. 208, 110 Am. St.
Rep. 986, 79 Pae. 22, 70 L. R. A.
341.

See, also, Pomeroy on Riparian
Rights, sees. 46, 92; Kinney on Irri-
gation, sees. 154, 156; Gould on
Waters, sec. 230; 17 Am. & Eng.
Ency. of Law, 485, 497.

Statutes. — These rules are now in-
corporated in Cal. Civ. Code, sees.
1412, 1415; Wyoming StaU. 1905, p.
147; S. Dak. Stats. 1905, p. 201, sec.
48; Okla. Stats. 1905, p. 274, see. 10;
N. Mex. Stats. 1905, p. 270, sec. 6,
and the statutes of other States gen-
erally. See statutes infra, Part Vl.

It may be interesting to note that
in Hawaii, where a peculiar system
of its own prevails concerning waters,
a water right is also held not to be
inseparable from the land on which
first used. (Haw. Com. Co. v. Wai-
luku Co., 15 Hawaii. 677.)

«8 Santa Paula etc. Co. v. Peralta,
113 Cal. 38, 45 Pac. 168.

<» Coffin V. Left Hand Ditch Co.,
6 Colo. 443.

f 185

CHANGE OP MODE OF ENJOYMENT.

293

§ 186. Statutory Bestrictions. — This rule permitting change
arose in the early mining days, and the irrigation engineers to-day
believe it unfortunate in its application to irrigation, and the recent
irrigation codes contain provisions that 'Hhe rigl^t to the use of
water for irrigation inheres in the land irrigated, ' ' and makes the
appropriation inseparable therefrom (being abandoned when no
longer there used), or else separable only after application to the
State Engineer, publication of notice, protest of other parties con-
cerned and final decision of the State Engineer. Such statutes
exist in Idaho, Nevada, North Dakota, Oklahoma, South Dakota and
Utahjo

So far as these statutes have come before the courts, however,
the early California cases have been generally cited, and the statutes
have not been given great force. In a Wyoming case it was held
that the statute requiring appropriators to file a description of the
land irrigated, which description is incorporated in the final cer-
tificate, does not limit the right to use the water to that land in-
separably ; on the contrary, the water right may nevertheless be sold
for use on different ]and ; ^^ saying that many of the objections
urged against this rule of change of place of use are fanciful. In
Idaho, likewise, the court refused to give full effect to statutes
seeking this same end.''^

In a Colorado case*^^ it is said that the disastrous consequences
of the rule making the right dependent on the place of use forbids
giving such a construction to statutes as will concede the same,
if another construction id possible. In a California case ^^ it is said
that the rule would lead to endless complications, and materially
impair the value of water rights and privileges. Concerning th,e
Nevada statute it is said : ''^ **PartieiJ entitled to water are required
to make application to the State Engineer before any transfer may
be made, but in practice farmers are allowed to use the water to

70./daAo.--Stat8. 1903, p. 223, secH.
5, 8; 1907, p. 507.

Nevada. — Stats. lOOo, p. 66; 1907,
p. 30, Me. 26.

North Dakota. — Stats. 1905, p. ,

sees. 28, 50.

Oklahoma.^SiSLts. 1905, p. 274,
acts. 21, 30.

Sonth Dakota.— StSiti. 1905, p. 201,
sees. <5l, 47.

Utah. — Stats. 1905, c. 108, sec. 53.

Ti Johnston v. Little Horse etc.

Co., L3 Wyo. 208, 110 Am. St. R^p.
986, 79 Pac. 22, 70 L. B. A. 341.

72 Hard v. Boise r\ty etc. Co., 9
Idaho, 589, 76 Pac. 331,' 65 L. R. A.
407; Boise City etc. Co. v. Stewart,
10 Idaho, 38, 77 Pac. 25.

73 Coffin V. Left Hand Diteh Co.,
6 Colo. 443.

74 Davis V. Gale, 32 Cal. 32, 91 Am.
Dec. 554.

75 Bulletin 168, IT. 8. Dept. of
Agric, Office of Exper. Sta.

294

THE LAW OF APPBOPRIATION.

§ 186

whicti they are entitled on lands other than those in connection
with which the rights were acquired, if others are not injured by
the change. That is, if a farmer, prefers to use his water on new
land and let the old land lie fallow, he is allowed to do so. This
is done upon the theory that the water would be used on the old
land if the farmer was not allowed to use it on the new land,
and it makes no difference to the holders of the other rights what
land the water is used on." (Being the ground on which the
courts originally upheld changes.)

In Arizona and Nebraska, however, statutes limiting the power
to change place of use have been given effect.'^* But in Arizona;
while the appropriation must be for some definite land, it need

■

not remain the same tract of land.*"

So far as the statutes make the right inhere in certain land
they evidence a return, to that extent, to the principles of the com-
mon law of riparian rights, which holds the right to be attached to
certain lands.

§ 166. Change on Sale of Water Bight. — The recent statutory
attempts to restrict the place and purpose of use are due to objec-
tions raised to changes resulting from sales of water right, urging
that allowing purchasers' to use the water for new land or new
purposes or different kinds of industries, even if without injury to
others, leads to confusion that is inimical to the plan of the irriga-
tion codes, which seek to establish an official list, or register, or
''Domesday Book," as it is sometimes said, of water rights. Fre-
quent changes resulting from sales are not in the line thus con-
templated,^^ In the absence of express statutes contra, however,
the courts hold that a change of place of diversion or use or purpose

70 SloBBer V. Salt Bivor Co., 7 Ariz.
376, 6o Pac. 332; Gould v. Maricopa
etc. Co., 8 Ariz. 429, 76 Pac. 598;
Farmers' Irr. Dist. v. Frank, 72 Neb.
136, 100 N. W. 286.

Tt Biggs V. Utah etc. Co., 7 Ariz.
331, 64 Pac. 494.

78 The difficulty nevertheless re-
mains even when water is inseparable
from land. ''Another class of trans-
fers is still unprovidea for. These
are transfers of lands which carry
with them the rights of water. There
is no provision for making a record

of such transfers in the State En-
ffineeT*s office, and consequently the
records do not show correctly the
ownership of rights. It is frequently
desirable to send notices to water-
ri^ht holders, and often these notices
are not received, because the orig-
inal owner has transferred his land
and water right and left the State."
Bulletin 168, u; 8. Dept. Agric.
Exper. Sta. The same may also be
remarked of rights acquired by ad-
verse use.

I 186

CHANGE OF MODE OF ENJOYMENT.

295

of use f<dlowing a sale is as permissible as a change made on any
other oeeasion. The statutes are narrowly constmed so as still to
hold that the water right may be sold separate from the land.*^
The water right may be reserved on a sale of the land.^ Rental
rights are assignable free of the land in Idaho in analogy to similar
sales of original appropriations.^^ On a sale, the purchaser may use
the water for a new purpose, as from irrigation to city water
supply,®* or from irrigation to storage.® That the water right
may be sold separate from land, for use on other land, and for other
purposes, is generally held.^

While the place of use may thus be changed on a sale, yet if
the change is asserted as a reservation on sale of the land, the
intent to reserve the water right on a sale of the land must be
affirmatively shown, as elsewhere discussed. Though not insepara-
ble from the land, the water right msy be, and usually is, appurte-
nant thereto.^

So far as statutes attempt to change this rule, reference is further
made to previous sections.^

7» Fimnk t. Hieks, 4 Wjo. 502, 35
Pmt. 475; McPhail ▼. Forney, 4 Wyo.
556, 35 Fu. 773; Johnston t. Uttle
Hone etc Co., 13 Wyo. 208, 110 Am.
St. Bep. 986, 79 Pae. 22, 70 L. B. A.
341; Ciippen t. Comstoek,- 17 Cola
App. 89, 66 Pm. 1074; Smith v. Den-
niff, 23 Mont. 65, 57 Pae. 557, 50 L.
R. .\. 737; Ckehe La Poodre ete. Co.
▼. Larimer etc. Co., 25 Colo. 144, 71
Am. SL Bep. 123, 53 Pae. 318; Boim
etc Co. ▼. Stewart, 10 Idaho, 38, 77
Pae 32; Benemer etc Co. ▼. Wooley,
32 Colo. 437. i05 Am. St. Bep. 80,
76 Pae 1054, 65 L. B. A. 424; Op-
penlander t. Left Hand Diteh Co.,
18 Cob. 142, 31 Pae 854; Striekler
▼. Colorado Spiinaa, 16 Colo. 61, 25
Am. St. Bep. 245, 26 Pae 313, and
other cases cited below, sees. 225-227,
in diseuasiny the question of "Ap-
pnrtemuice.''

w Dodge ▼. Harden, 7 Or. 457.

n Hard ▼. Boise etc Co., 9 Idaho,
589, 76 Pae 331, 65 L. B. A. 407.
Qf^e, whether this foDowa in CUi-
fomla as a result of Stanislami W.
Co. T. Baehmaa (OaL Sop., Jan. 23,
1908), 93 Pae 858.

»2 Striekler ▼. Colorado Springs, 16
Colo. 61, 25 Am. St. Bep. 245, 26 Pae
313.

83 Seven Lakes etc. Co. v. New
LoTeland ete Co. (Colo.), 93 Pae
485.

M Cave T. Crafts, 53 OaL 135;
Coonradt v. Hill, 79 OaL 587, 21 Pae
1099; Crooker v. Benton, 93 OaL 365,
28 Pae 953; Smith ▼. Corfoit, 116 CaL
587, 48 Pae 725; Tucker ▼. Jones, 8
Mont. 225, 19 Pae 571; Sweetland
V. Oben, 11 Mont 27, 27 Pae 339;
Smith V. Denniir, 23 Mont. 65, 57
Pae. 557, 24 Mont. 20, 81 Am. St.
Bep. 408, 60 Pae 398, 50 L. B. A.
741; Simmons ▼. Winters, 21 Or. 35,
28 Am. St Bep. 727, 27 PSe 7;
Coventon ▼. Seofert, 23 Or. 548, 32
Pae. 508; Tomer ▼. Cole, 31 Or. 154,
49 Pae 971; Toyaho Co. t. Hntehins,
21 Tex. <^. App. 274, 52 S. W. 101 ;
Snyder ▼. Mnrdoek, 20 Utah, 419, 59
Fae 91; Fisher r. Bonntifnl City,
21 Utah, 29, 59 Pae 520; Frank v.
Hicks, 4 Wyo. 502, 35 Pae 475, 1025;
MePhail r. Forney, 4 Wyo. 556, 35
Pae 773.

w See see 225, Appartenance.

M Sees. 185, 186.

296 THE LAW OF APPROPRIATION. § 187

E. CHANGE OF PURPOSE OF USE.

§ 187. Ohanga of Purpose. — ^A change of purpose for which
the water is used was at the start of the doctrine of appropriation
in California treated as a distinct question from change of place."
It was urged in several cases that the right was limited to the pur-
pose for jirhich first appropriated and that a use for a new purpose
could he obtained only by new appropriation. This view obtained
some footing in the early decisions.^^ But it never took a firm hold.
In McDonald v. Bear River Co.* it was held that use for a saw-
mill could be changed to use for a gristmill, and in Davis v. Oale,^
it was said {obiter) that use for placer mining could be changed to
use for quartz mining ¥nthout loss of priority. The more recent
cases are in this line, though they do not go into the question
closely. They disregard any distinction between change of place
of use (well-established) and change of purpose of use. The role
has rather been assumed as applying to change of purpose than
independently decided, though just as well settled Itp-day. The
rule now is that there is no limitation on change of purpose of
use except that others must not be injured by the change.^^ In a
recent Nebraska case ^ it was held, relying on the California cases,
that a change could be made from use for power purposes to use for
irrigation. A change may be made from use for crops requiring
early irrigation to other crops requiring late irrigation, remember-
ing always that others must not be injured by the change;^ or
from mining to agricultural purposes and vice versa.^ As was

87 E. g., Maoris v. Bicknell, 7 Oal. etc. Vo., 101 Cal. 242, 35 Pae. 770;
261, 68 Am. Dec. 257. Hargrave v. Cook, 108 Cal. 72, 41 Pac.

88 M, g., Ortman v. Dixon, 13 Gbl. 18, 30 L. B. A. 390 ; though it shouM
33; McKinney t. Smith, 21 Cal. 374; be noted that only change of place
Hill y. Smith, 27 Cal. 476 ; Nevada etc. of use is specificaUy covered hj sec*
Co. V. Kidd, 37 Cal. 282, at 315; and tion 1415, California Civil Code. Ac-
compare Lowden v. Frey, 67 C^l. 474, cord Pomeroy on Biparian Bights, sec.
8 Pac. 31; Shenandoiui etc. Co. v. 65; Kinney on Irigation, see. 154;.
Morgan, 106 Cal. 409, at 418, 39 Pac. Farnham on Waters, sec. 677; and see
802, and note in 43 Am. Dec. 28; cases coUected in 60 Am. St. Bep. 813,
Faniham on Waters, see. 677. note.

80 13 Cal. 220. 02 Farmers' etc. Irr. Co. v. Qothen-

90 32 Cal. 26, 91 Am. Dec. 554. burg Irr. Co. (Neb.), 102 N. W. 487.

01 Bamelli v. Irish, 96 Cal. 214, 31 * M Seven Lakes etc.. Co. v. New

Pac. 41; Jacob v. Lorenx, 98 Cal. 332, Loveland etc. Co. (Colo.), 93 Pac. 485.

33 Pac. 119; Gallagher v. Montecito M Ihid. (dictum).

9 187

CHANGE OP MODE OF ENJOYMENT.

297

said by Justice Field in Atchinson v. Peterson:*^* **A different use
of water subsequently does not affect the right.''

In Montana, '^ section 1882 of the Civil Code recognizes the right
of an appropriator or owner of a water right to change the place
of diversion, as well as the use and the place of use. It therefore
does not follow that, because water has been appropriated for a
particular use, it forever thereafter must be applied to that use. ' ' ^
In a Colorado case a change was permitted from irrigation to a city
water supply,^ though, on the other hand, Colorado prohibits, by
statute, a change from domestic use to irrigation.^ Likewise a
change has been permitted in Colorado from direct irrigation* to
storage for use later in the season.^

The change of purpose of use is governed by the same rules as
those of change of place of use, and, in fact, frequently treated
as the same question. The change may be made on a sale of the
water right, the purchaser using the water for a new purpose.®®
Likewise the change cannot be made if others are injured by the
new use, as where a change was made from irrigation to storage
needing additional water and different times of flow. This is not
permissible.^^ Where the appropriation is originally of running,
water for irrigation, storage reservoirs cannot be introduced to
the injury of others,^®^ but may, in the absence of such injury.***-

That the change may injure persons not parties to the action can-
not be considered.^®^

Wa 20 Wall. 514.

»5 Hayes v. Buzard, 31 Mont. 74, 77
Pae. 425. Other Montana decisions
upholding enange of purpose of use
are Woolman v. Garringer, 1 Mont.
535; Power v. Switzer, 21 Mont. 523,
55 Pac. 32. ^

M Striekler v. Colorado Springs, 16
role. 61, 25 Am. St. Rep. 245, 26 Pac.
313.

w Supra, sec. 51, Preferences.

^ Seven Lakes etc. Co. v. New
LoTeland etc. Co. (Colo.), 93 Pac. 485.

00 Seven Lakes etc. Co. v. New
Loveland etc. Go. (Colo.), 93 Pac.
485; as to which see, also, cases cited
to this effect, supra, in sec. 186.

100 Colorado etc. Co. v. Larimer etc.
Co., 26 Colo. 47, 56 Pac. 185.

101 New Loveland etc. Co. v. Con-
solidated etc. Co., 27 Colo. 525, 62
Pac. 366, 52 L. R. A. 266.

102 Seven Lakes etc. Co. v. New
Loveland etc. Co. (Colo.), 93 Pac. 485.

108 Seven Lakes etc. Co. v. New
Loveland etc. Co. (Colo.), 93 Pac.
485; supra f sec. 196.

298 THE LAW OF APPROPRIATION. 99 188, 189

CHAPTER XII.

PROTECTION OF THE RIGHT.

A. GENERAL PRINCIPLES.
9 188. Introductory.
9 189. Materiality of injury.

B. INJURY TO QUANTITY.
9 190. General xules.

C. INJURY TO QUALITY.

9 191. Materiality of injury.

9 192. Same.

9 193. Mining debris.

9 194. Priority.

D. PROCEDURE.

9 195. Parties.

9 196. Unrepresented interests.

9 197. Jurisdiction.

9 198. Injunction.
99 199-205. Same.

9 206. Actions to quiet title, settling rights, etc.

9 207. Specific performance, etc.

9 208. Actions at law.

9 209. Pleading — Joinder of parties or causes of action.

9 210. Same — Allegations in complaint.

9 211. Same.

9 212. Practice.

9 213. Damages.

9 214. Decree.

9 215. Use of physical force.

9 216. Crimes.

A. GENERAI^ PRINCIPLES.

§ 188. We have been considering, up to the present^ what the
appropriator has a right to do. Now it is proper to consider what
he has a right to complain of ; that is, what constitutes an infringe-
ment of his right by others. The injury may be to quantity or
quality of the water.

§ 189. Hateriality of Injury. — In respect to the test of wrong-
ful interference, the departure from the common law is great.

S 189 " PBOTBCTION OF THE BIGHT. 299

That system was founded on the equality of right of all riparian
proprietors. Each, riparian owner had the right to a reasonable
use of the stream, though by so doing the use of the stream by an-
other proprietor was made less favorable. Neither proprietor could
claim an exclusive right. Their rights are correlative. But under
the law of appropriation it is the reverse. The appropriator gets
an independent and exclusive right, any material interference
with which is wrongful, however reasonable the interference might
have been between riparian owners. The rules of the common
law concerning reasonableness have no application,^ though a few
dicta will be found to the contrary effect, dating from the time
when there was an attempt to minimize the departure of the law
of appropriation from the common law.^ The question under the
law of appropriation is whether the flow is still substantially fit for
the purpose of the prior appropriator.^

'*What diminution of quantity or deterioration in quality will
constitute an invasion of the rights of the first appropriator will
depend upon the special circumstances of each case, considered with

reference to the uses to which the water is applied In all

controversies, therefore, between him and parties subsequently
claiming the water, the question for determination is necessarily
whether his use and enjoyment of the water to the extent of his
original appropriation have been impaired by the acts of the de-
fendant. This is substantially the rule laid down in Hill v. Smith.
27 Cal. 483; Yale, Mines, 194."*

The subsequent appropriator who claims that such diversion
will not injure th^ prior appropriator below him should be re-
quired to establish that fact by dear and convincing evidence.^

The prior appropriator will be protected against owners of
land through which the stream flows or ditch runs, if the land
passed from the public domain into private title later than the
date of the appropriation of the' stream.®

1 HiU ▼. King, 8 Gal. 336. Cal. 481 ; Hill v. Smith, 27 Cal. 476 ;

2 Ante, sec. 7; e. g,, Phoenix etc. Bennett v. Morris (Cal.), 37 Pae. 929.
Co. T. Fleteher, 23 Cal. 481. « Per Mr. Justice Stephen Field in

8 Atchison v. Peterson, 87 U. S. Atchison v. Peterson, 87 U. 8. 507, 22

507, 22 L. ed. 414; Bear JECiver etc. L. ed.. 414. •

Co. ▼. New York etc. Co., 8 Cal. 327, 5 Moe v. Harger, 10 Idaho, 302, 77

68 Am. Bee. 325; Butte Canal etc. Co. Pac. 645.

▼. Vaughn, 11 Cal. 143, 70 Am. D'sc. « Ante, c. III.
769; Phoenix etc. Co. v. Fletcher, 23

300

THE LAW OF APPROPBIATION.

f 190

B. INJUBY TO QUANTITY.

§ 190. Otneral Kulet. — Later coiners must leave undiminished
the quantity of flow to whieh we have already seen the appro-
priator is entitled; in general, the amount stated in his notice,
or permit, or enough to fill his ditch if less than that, or the
amount he actually uses, if less than both the former. A diminu-
tion of the quantity appropriated need not be the result of actual
diversion; for example, if sawdust from a sawmill clogs up one's
ditdh so as to diminish the flow, it is actionable^ Or if the
velocity is diminished by a dam preventing the working of a mining
claim by a prior appropriator, or causing irregularity of flow.*
Water must not be discharged into another's canal to his injury.'
Should the interference be the result of increase or acceleration
of flow it would also in some cases be actionable, but a discussion
of the law of drainage and flooding is foreign to our present
purpose.

The appropriator cannot complain if the surplus over the amount
he has appropriated is taken by subsequent appropriators or sub-
sequent riparian owners.*® We repeat here only that the surplus
may consist in the use at certain times (where periodical appro*
priations), or the surplus in amount, over prior appropriations
above or below.^*

7 Phoenix Water Co. v. Fletcher,
23 Cal. 481.

8 PhoeAix Water Co. v. Fletcher, 23
Cal. 481; Natoma etc. Co. v. McCoy,
23 Cal. 490; Stone v. Bumpers, 46 Ca"l.
218; Parker v. Qref^g, 136 Cal. 413,
69 Pac. 22. See, also, De Baker v.
Southern Cal. By. Co., 106 Cal. 257,
46 Am. St. Rep. 237, 39 Pac. 610.

8 North i^oint etc. Co. v. Utah etc.
Co., 16 Utah, 246. 67 Am. St. Rep.
607, 52 Pac. 168, 40 L. R. A. 851.

1<> Kelly V. iNatoma etc. Co.. 6 Cal.
105; Brown v. Smith, lU Cal. 510;
Ortman v. Dixon, 13 Cal. 33 ; McDon-
ald V. Bear River etc. Co., 13 Cal. 220 ;
McKinley v. Smith, 21 Cal. 374;
American Co. v. Bradford, 27 Cal.
360; Nevada etc. Co. v. Kidd, 37 Cal.
282, at 313; Higgins v. Barker, 42
Cal. 233; Smith v. O'Hara, 43 Cal.

371; Stein Canal Co. v. Kern lalftnd
etc. Co., 53 CaL 563 ; Hillmnn r. New-
ington, 57 C^l. 56; Brown v. MuUin,
65 Cal. 80, 3 Pao. 99; Junkans v.
Bergin, 67 Cal. 267, 7 Pac. 6S4;
Edgar T. Stevenson, 70 Ckl. 286, 11
Pac. 704; Ball t. Kehl, 87 Gal. 605,
25 Pac. 679; Barrows v. Fox, 98 Cal.
63, 32 PtMS. 811; Santa Pkala etc.
Works y. Peralta, 113 Cal. 38, 45 Pac.
168; Senior v. Anderson, 115 Oal. 496.
47 Pac. 454; Smith v. Hawkins, 120
Cal. 86, 52 Pftc. 139 ; Senior v. Ander-
son, 130 Cal. 290, 62 Pac. 563. See
ante, sec. 47.

11 Ante, sec. 48. See Natoma etc.
Co. V. Hancock, 101 Cal. 42, 31 Pac.
112, 35 Pac. 334; Faulkner v. Roti-
<loni, 104 Cal. 140, 37 Pac. 883. See
Farnham on Waters, p. 2085.

H 191, 192

PBOTECTION OV THE RIGHT.

301

The return of the water by an upper uaer may be in anjr way
that does no injury. The substitution of an artifieial flow for the
natural flow is not per se an injury.*^

Aside from this statement of the rule that materiality of damage
is the test of actionable injury in the law of appropriation, the
protection of quantity is so closely involved in other chapters as
to require no further separate consideration.

C. INJURY TO QUAIilTY.

§ 191, HtateriaUty of Injury. — The appropriator having an in-
dependent and exclusive right, any material interference there-
with is wrongful, however reasonable it might have been between
riparian owners. The rules of the common law concerning reason-
ableness have no application. fThe question is whether the water
is still substantially fit for the special purpose of the prior appro-
priatorj® The burden of showing the materiality of. the injury
is upon the plaintiff, as is the ultimate burden of proof in any suit,
and consequently, for example, a placer miner can have no action
where later comers above muddy the stream, but still leave it fit for
his purpose.^* In Hill v. Smith ^^ the court lays down the rule as
follows: ''It may 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 circiimstances developed
by the testimony."

§ 182. Same. — The following are some examples of what has
been held an unlawful deterioration of the quality of the water

u Harrington v. Demaris, 46 Or.
Ill, 77 Pac. 603, 82 Pac. 14, 1 L. H.
A., N. S., 756; Austin ▼. Chandler,
(Ariz.), 42 Pac. 483, holding that the
water need not be returned direct)/
into the stream, but may be returned
into the ditch of the lower user. See
ante, sec. 62.

18 Supra, sees, 178, 189.

14 Atchison V. Peterson, 87 U. S.
507, 22 L. ed. 414; Bear River Ck>. v.
J^ew York Co., 8 Cal. 327, 68 Am. Dec.
325; Butte etc. Co. v. Vaughn, 11 Cal.
143, 70 Am. Dec. 769; Phoenix etc.
Co. V. Fletcher, 23 Cal. 481; Hill v.
Smith, 27 Cal. 476; Montana etc. Co.
V. Gehring, 75 Fed. 384, 21 C. C. A.
414.

15 27 Cal. 476, at 484.

302

THE LAW OF APPROPRIATION.

9 193

against prior appropriators : If a later, miner so muddies a stream
that it cuts the hose of prior hydraulic miners below ; ^^ if one
miner's tailings clog a prior miner's tail-race,^'' pr fill a prior appro-
priator's ditch ;^^ if sawdust is thrown into a stream.^® If one
pollutes water with oil so that if kills cattle. ^'^ Rendering the
water dangerous to health is a crime.^

§ 193. Mining Debris. — In Pennsylvania^^ an exception is
made in favor of miners to the use of streams to carry off waste.
as against agriculturists • upon the stream below. In California
an early attempt was made to establish that principle, and in some
cases^ it was held that a channel is a natural outlet for the dis-
charge of tailings by all miners, without liability therefor. But
it was soon settled that the law does not recognize any such right
to a channel merely as a way of necessity,^ and that no partiality
is given to miners.^^ Consequently injunctions were granted
against mining in the following cases because it materially ^ injured
prior appropriators (or landowners) who were engaged in agricul-

16 HiU V. Smith, 27 Cal. 476.
" Gregory v. Harris, 43 Cal. 39.

18 Logan ▼. Driacoll, 19 Cal. 623, 81
Am. Dee. 90; Junkens y. Bergin, 67
Cal. 267, 7 Pac. 684.

19 Phoenix etc. Co. ▼. Fletcher, 23
Cal. 481.

i»» Benjamin v. Gulf By. (Tex. CTiv.
App.), 108 8. W. 408.

20 Infra, sec. 216.

21 Sanderson v. Pennsylvania Coal
(?o., 86 Pa. St. 401, 27 Am. Rep. 711,
102 Pa. St. 370; Pennsylvania Coal
Co. V. Sanderson, 94 Pa. St. 302, 39
Am. Bep. 785, 113 Pa. St. 126, 57
Am. Bep. 445, 6 Atl. 453. But see
Boaring Creek etc. Co. v. Anthracite
etc. Co., 212 Pa. St. 115, 61 Atl. 811 ;
Bowling Coal Co. v. Buffnej (Tenn.).
100 S. W. 116.

22 Sims V. Smith, 7 Cal. 148, 68 Am.
Dec. 233, and Bear Biver etc. Co. v.
New York etc. Cb., 8 Cal. 327, 68 Am.
Dec. 325.

28 Esmond v. Chew, 15 Cal. 137;
Wixon V. Bear Biver etc. Co., 24 Cal.
367, 85 Am. Dec. 69; Levaroni v.
Miller, 34 Cal. 231, 91 Am. Dec. 692;

Stone V. BumpuB, 40 Cal. 428; Greg-
ory v. Harris, 43 CaL 38. Cf, Tnnker
V. Nichols, 1 Colo. 551, coatra in prin-
ciple.

24 Ante, sees. 9, 50.

25 Material injury must be shown
as above set forth. In this connec-
tion says Lindiey on Mines, section
841:

''While the privilege of depositing
such tailings in the streams must be
reasonably exercised, and so as not to
materially impair or destroy rights
acquired by a lawful prior appropri-
ator, yet to say that the discharge of
such tailings is a nuisance per se, or
to restrict it within unreasonable lim-
its, is to interdict the proseeutioji of a
lawful enterprise and practically to
confiscate property of inconceivable
value. Should any such stringent rule
be invoked in regard to either quartz
or hydraulic mining, the industry
would be abandoned, awaiting the ad-
vent of the magician who will separate
gold and silver from the earth and
rocks without the aid of water. ' '

§ 193

PBOTECTION OP THE EIGHT.

303

ture: sluice mining;^ hydraulic mining.^ In a recent case con-
cerning quartz mining ^ it is said: ''Believing that the quartz and
granite can be pulverized and the tailings impounded by the con-
struction and maintenance of a proper dam, the decree of the lower
court will be reversed, and one entered here perpetually restraining
the defendant, its agents and servants, from the further operation
of its miU until it has made suitable provision to prevent injury to
plaintiff's irrigating ditches, and to the water used by him from
the creeks for household and for stock purposes. ' '

Some other cases enjoining pollution by mining by a subsequent
appropriator are given in the note.^ In Robinson v. Black Dia-
mond Goal Co.^ debris from coal mining was carried far down
stream and there, when the stream overflowed, cove)red agricultural
ground. The court there said that the long distance made no more
difference than if the debris had been dumped on the fields after
being carried there by carts or cars.^^

The right to the use of a stream for depositing debris from
mines is discussed by Judge Lindley.^^ Many cases from the various
States of the Union are cited and discussed by the author.- He
closes his text as follows : ''No positive rule of law can be laid down
to define and regulate such use with entire precision. As to this
all courts agree. It is a question of fact to be determined by the

jury.

» Levaroni v. Mmer, 34 GaL 231,
91 Am. Dee. 601; Xk>xmty of Sierra v.
Batler, 136 CaL 547, 69 Pac. 418:
Oonnty of Tuba ▼. Kate Hajes etc.
Co., 141 C!b1. 360, 74 Pac. 1049; Mc-
Carthy T. Gaston etc. Min. Co., 144
Cal. 642, 78 Pac. 7.

27 Logan V. Driseoll, 19 Oal. 623,
81 Am. Dee. 90; People y. Gold Bun
etc Co., 66 Oal. 138, 56 Am. Bep. 80,
4 Pac. 1152; Hobs ▼. Amador etc. Co.,
66 CaL 161, 4 Pac. 1147; County of
Yuba V. Cloke, 79 Cal. 239, 21 P*u?.
740; Mmer ▼. Highland Ditch Co., 87
Cal 430, 22 Am. St. Bep. 254, 25 Pac.
550; Woodruff ▼. North Bloomfield
Co., 18 Fed. 753, 9 Saw. 441 ; United
States y. North Bloomfield Co., SI
Fed. 243 ; North Bloomfield v. United
States, 88 Fed. 64, 32 C. C. A. 84.

28 Brown v. Gold Coin etc. Co.
(Or.), 86 Pac. 361.
,29 Carson y. Hayes, 39 Or. 97, 65
Pac. 814; Golden etc. Co. ▼. Superior
Cburt, 65 Cal. 187, 3 Pac. 628 (by
hydraulic mining) ; Eureka Lake etc.
Co. y. Superior Court, 66 Cal. 311, 5
Pac. 490 (hydraulic mining) ; Mon-
tana etc. Co. V. C(ehring (C. C. A.
Mont.), 75 Fed. 384, 21 C. C. A. 414.

80 In Bbbinson y. Black Diamond
Coal Co., 57 Cal. 412, 40 Am. Bep.
118.

81 Ailshie, J., in Hill v. Standard
Min. Co., 12 Idaho, 223, 85 Pac. 907,
distinguishes between pollution of the
quality of the water as a fiuid, and
filling up the bed of the stream by
dumping material in it and making it
overflow.

82 2 Lindley on Mines, see. 840.

ao4

THE LAW OF APPBOPBIATION.

i 194

Injunctions against pollution are granted, for example, wlm«
the pollution is caused by sewage,^ or by location of a cemetery
on higher ground,^ or by gasworks.^ Pollution is classed as .a
nuisance."

As a result of the California cases on hydraulic mining, Congress
has prohibited it in California on the ground of interference with
the navigability of the Sacramento and San Joaquin Rivers, mak-
ing it a misdemeanor unless under permission from the '^ Debris
Commissioner/'^ This prohibition is made to extend to what-
ever the words "hydraulic mining" or "mining by the hydraulic
process" meant in 1893 when the act was passed. Whether it
would prohibit such things as working over tailings or dumps or
other artificial banks of earth by water under pressure is not
clear.*^ It has been held that a permit from the commissioner
does not relieve from liability for damage or pollution, though the
works be carried on in strict compliance with the directions of the
commissioner. An injunction may, nevertheless, be granted.**

§ 194. Priority. — We have been considering the question from
the view of injury to the prior appropriator. The principles on
which the law of appropriation rests should apply with equal force
where the case is reversed, and the injur/ is to the subsequent
claimant. If the prior claimant appropriated the stream for the
purpose of depositing tailings, sawdust or other material in it,
and so used the water at the time the subsequent claimant arrived,
the continuance of the pollution of the stream should be lawful
as one of the characteristics in which the law of appropriation is a
departure from the common law of riparian rights. It was so held
in Sims v. Smith.*^ It is similar in principle to O'KeiflPe v. Cun-

83 Todd V. City of York (Neb.), 92
N. W. 1040; People v. City of San
Luis Obispo, 116 Cal. 617, 48 Pac.
723.

34 Jungv. Neraz, 71 Tex. 396, 9 8.
W. 344.

35 Beatrice Gas Co. ▼. Thomas, 41
Neb. 662, 43 Am. St. Bep. 711, 59 N.
\v. 925.

88 Craine v. Winsor, 2 Idaho, 248.

37 27 Stats, at Large, 507, the sub-
stance of which is g^iven in Part VI
below, in the collection of Federal
Statutes.

8S If emphasis is laid on the words
"hydraulic process," as in Lindley
on Mines, section 848 et seq.^ such
work would clearly be within the aet.
If emphasis is laid on the word "min-
ing," it might, perhaps, not. The
effect of the act, and the question of
pollution as applied to mining are dis-
cussed at length in Lindley on Mines,
2d ed., sec. 852 et seq.; Pomeroy on
Riparian Bights, sec. 76.

8» County of Sutter v. Nichols
(Cal. Sup.), Jan. 23, 1908.

40 7 Cal. 148, 68 Am. Dee. 233.

§ 194 PROTECTION OF THE BIGHT. 305

ningham,^ where it is said that tailings can be deposited on land
by a prior appropriation (i. e,y location) of the land for that pur-
pose, and Jacob v. Day,^ where it was held that tailings can be
'/rushed" across land in a ditch, if the ditch was on the land while
public, prior in time to the title of the occupant of the land. . There
is no distinction in principle between the right acquired by
priority to deposit tailings on land, rush them in a ditch, or de-
posit them in streams. They are equally rights to which exclu-
sive use may be acquired by priority on public lands.

How far priority will sanction the poUution is, however, left in
doubt by the ''Debris Cases," holding that hydraulic mining was
a public nuisance in those cases, and that the right to continue
a public nuisance could not be maintained under a claim of either
priority or prescription.*^ Following this, pollution has been de-
clared to be a public nuisance.** In People v. Elk River etc. Co.,**^
pollution of a stream was said to be a public nuisance if it inter-
feres with use by a considerable number of persons on the banks
of a stream though non-navigable.

In a Colorado case*® tailings from a stamp-mill were enjoined
at the suit of a power company, though to some extent at least the
stamp mill had discharged tailings into the stream before the power
company began. (The number of stamps thereafter, however, had
been increased.) In a recent Idaho case it was held that no pre-
scriptive right to poUute can arise because it is a continuous in-
jury.*^ Idaho has a constitutional provision*® that appropriations
for mining in mining districts shall take precedence over those for
agriculture. The same case held that the preference to mining
in the Idaho constitution has no application to questions involving
pollution of streams. The miner in this case had a priority over
the agriculturist by virtue of the constitution ; hence this is a deci-
sion that piriority cannot sanction pollution. In a Texas case en-
joining pollution by waste from oil wells, it was held no defense

41 9 Oal. 589. Am. St. Bep. 121, 40 Pftc. 486 (a

48 11 Gal. 571, 44 Pae. 243. daiiy) ; People y. Elk Biver etc. Co.,

4S See eases cited above and People 107 Gal. 221, 48 Am. St. Bep. 125, 40

V. Gold Bun etc. Co., 66 Gal. 138, 56 Pae. 531 (a sawmill).

Am. Bep. 80, 4 Pae. 1152; Woodraff 45 Gited in the preceding note.

V. North Bloomfleld Go., 18 Fed. 801, 46 Suffolk etc. Co. t. San Miguel

9 Saw. 441, especially. etc. Go., 9 Golo. App. 407, 46 Pae. 828.

44 Coniad ▼. Arrowhead etc. Hotel 47 Hill ▼. Standard etc. Go., 12

Co., 103 CaL 399, 37 Pae. 386; People Idaho, 223, 85 Pae. 912.

V. Elk Biver etc. Co., 107 Gal. 214, 48 48 Art. 15, sec. 3.
Water Bight»--20

306

THE LAW OF APPROPBIATION.

§ 195

that the pollution was without negligence and the natural conse-
quence of a lawful business.^

In Conrad v. Arrowhead etc. Hotel Co.^ where the pollution con-
sisted in refuse from a hotel and not mining debris, the court states
the rule as follows :

*' Locators and appropriators of the waters of a stream have no
rights antecedent to the date of their location. If others have,
prior to their location, decreased the quantity of the water flowing
in such streams, or caused a deterioration of its quality, the sub-
sequent locator cannot complain. Familiar examples of the appli-
cation of this rule as between appropriators are of frequent oc-
currence in the mining regions of this State, where water is di-
verted from flowing streams, upon which mining has destroyed
the purity of the water. In such cases the appropriator takes the
water with his eyes open — takes it as he flnds it, and as to him the
like continued deterioration is damnum absque injuria,* *^^

Concerning the pollution of underground waters, some references
are given in the note.*^^

D. PEOCEDUEE.

§ 196. Who can Sue — ^Parties. — ^The owner of the water right
has the usual recourse to the courts, as he has in the protection of
any other property.

A mortgagee has been held to have a right of action against
a water company for failure to supply water.'® A contract of pur-

40 Teel V. Bio Bravo Oil Co. (Tex.
Civ. App.), 104 8. W. 423, disapprov-
ing Pennsylvania Coal Co. v. Sander-
son, 113 Pa. St. 126, 57 Am. St. Bep.
445, 6 Atl. 453, cited supra,

80 103 Cal. 399, 37 Pac. 386.

51 Concerning poUution, see Bulle-
tin 152, Water Supply Paper, U. S.
Geol. Survey.

fi2 Kinnaird v. Standard Oil Co., 89
Ky. 468, 25 Am. St. Rep. 545, 12 S.
W. 937, 7 L. R. A. 451; Ballard v.
TomHnson, 29 Ch. D. 115, 122, 126;
Sherman v. Pall River etc. Co., 5
Allen (Mass.), 213; Alston v. Grant,
3 El. & Bl. 128 ; Turner v. Mirfield, 34

Beav. 390; Womersley v. Church, 17
L. T., N. S., 190; Clark v. Lawrence, 6
Jones Eq. 83, 78 Am. Dee. 241 ; Green-
castle V. Hazelett, 23 Ind. 186; Wahle
V. Reinbach, 76 HI. 322, 326; Upjohn
T. Richland Township, 46 Mich. 549,
41 Am. St. Rep. 178, 9 N. W. 845;
Brown v. Illius, 27 Conn. 84, 71 Am.
Dec. 49; Dillon v. Acme Oil Co., 49
Hun (N. Y.), 565, S N. Y. Supp. 289;
Barnard v. Shirley, 135 Ind. 547, 41
Am. St. Rep. 454, 34 N. E. 600, 35 X.
E. 117, 24 L. R. A. 568.

S8 Equitable etc. Co. v. Montrose
etc. Co., 20 Colo. App. 465, 79 Pae.
"747.

§ 196

PROTECTION OF THE RIGHT.

307

chase gives the intended purchaser a right to bring an action
to change the point of diversion/"**

In an action to enjoin a water commissioner from diverting water
from a stream, persons for whose benefit it is diverted are necessary
parties.'^ Under the Colorado view that consumers from a cor-
poration ditch are themselves appropriators, the consumers are not
necessary parties where the corporation, as itself an appropriator,
sues a wrongdoer,^ but, on the other hand, such consumer may alone
•ue the company,*"*^ or himself as appropriator sue the wrongdoer
without joining the company.^

A stockholder may enjoin the corporation from taking contracts
b^ond its capacity.^ A tenant having the right of possession
may sue a stranger, the injunction obtained becoming inoperative
at the end of the lease.*^ The landlord can sue a stranger for
diversion or sue a canal company on a water supply cotitract, though
tenant is in possession,®^ but is not liable for a wrongful diversion
by his tenant in the absence of concurrence or consent on the land-
lord's part.®^ One tenant in common can sue and enjoin*^ his co-
tenant for diversion, and in California is entitled to treble dam-
age«.** One tenant in common may alone sue a stranger for diver-
sion.^ On partition suit between tenants in common, there can
only be a sale.^

§ 106. Unrepresented Interests. — It is a fundamental principle
of the law in all its branches that the court can determine the rights
only of the parties to the suit, and only as between themselves.
They may both be wrongdoers as against a third party; yet that
third party may never set up his right against either of them.

34 Wadsworth etc Co. v. Brown
(Colo.), 88 Pae. 1060.

55 Squires v. Livezey, 36 Colo. 302,
85 Pac. 181.

38 Montrose etc. Co. v. Loiitsenhizer,
23 Colo. 233, 532.

57 Farmers' etc. Co. v. Agricultural
etc Cb.j 22 Colo. 513, 55 .\m. St. Rep.
149, 45 Pac 444.

38 CliflFord v. Larrieu, 2 Ariz. 202,
11 Pac. 397. See infra, sec. 528,

5» McDermott v. Anaheim etc. Co.,
124 Cal. 112, 56 Pac. 779.

60 Heilbron v. Fowler etc. Canal
Co., 75 Cal. 426, 7 Am. St. Rep. 183,
17 Pac 535.

01 Heilbron v. Last Chance Water
etc Co., 75 Cal. 117, 17 Pac 65.

6-' Gould V. Stafford, 101 Cal. 32,
35 Pac. 429.

03 Lorenz v. Jacobs (Cal.), 3 Pfec.
654.

w Cal. Stats. 1889, p. 202. Com-
pare ('al. Civ. Code, sees. 842, 843.
See Pomeroj on Riparian Rights, sec.
59; Farnham on Waters, sec. 504.

t« Rodgers v. Pitt, 129 Fed. 932;
Little Creek etc. Co. v. Perdew, 65
Cal. 447, 4 Pac. 426. See contra, 20
Harv. Law Rev. 242.

'5^ Supra, sec. 71.

308 T5E LAW OF APPROPRIATION. 9 196

It is is the oflBce of the court to adjudge only thp relative rights
in actual controversy of the plainti£Es against the defendants and
vice versa. Hence it is that different decrees often award to dif-
ferent persons^ the whole of a stream, such awards being in different
suits between different parties, though as against other appro-
priators who have not taken part in the litigation they may haTe no
right at all. In order to determine what right one absolutely has in
the stream as against all claimants, all claimants must be brought
into court ; otherwise the court can adjudge only the relative rights
of those before it. Possession is a sufficient right to the whole
stream against a wrongdoer as to the possessor.*^

One of the grounds for indictment of the sj'stem of appro-
priation has been this feature that one decree will award the whole
stream to John Smith against Tom Jones, and another, in a different
suit to which John Smith is not a party, the same to John Doe
against Richard Roe.* Yet that is inseparable from the funda-
mental principles of all legal procedure, for it would be against
all ideas of justice, and all constitutional principles of due process
of law, to bind by a decree the rights of a man who w^as not before
the court, or to limit the rights of one who is, by the rights of
strangers never asserted in the litigation. It is too obvious to re-
quire elaboration that the parties to a lawsuit must fight it out
between themselves, and at the same time that its results affect them
alone. The law guarantees to every man 9 right to a hearing be-
fore his right is adjudged , and to his opponent a right to contest
with him before his claim is passed upon.

It is in recognition of this fundamental principle that the irri-
gation codes have provided a special procedure to determine rights
by bringing all appropriators upon a stream into court in a single
suit, in which all litigate, and the decree may hence be absolute
in its determination. This special procedure is elsewhere consid-
ered at length.^

The right of strangers to a suit, hence, cannot be set up or con-
sidered in the suit, nor can it avail defendant to say that some
stranger to the suit has a better right than plaintiff.''^ The

67 Mason v. Hill, 5 Barn. & Aid. 1*. 70 Humphreys ▼. MeCall, 9 CaL 59,

68 Mr. Bien calls attention to this 70 Am. Dec. 621; Ellis y. Tone, 58
in his letter to the author, infra, p Cal. 289; Utt v. uVey, 106 CaL 396,
728. ' 39 Pac. 807; Senior v. Anderson, 138

09 Infra, Part TV, cc. II, III. Cal. 716, 72 Pac. 349; Craig v. Craf-

§ 196

PROTECTION OF THE BIGHT.

309

supreme court of the United States has said: ** Neither do we
think that the trial court was called upon, at the instance of the de-
fendants, entire strangers in every aspect to other appropriators,
to inquire into and pass upon the question whether appropriators of
water below the mouth of the proposed canal of appellee would be
injured by the construction of the canal. The rights of such per-
sons will not, of course, be injuriously affected by the decree in this
cause, and nan canstat but that they may yet intervene for their
own protection, if they deem that the construction of the oanal
will be an invasion of their rights, or that they may be willing
to forego objection to the construction of the canal. ' ' ''^

The rights of third parties cannot be set up unless they are
brought into court. If the defense to an aetion for diversion is
that plaintiff has no title to the water right and that there are
appropriators prior to him, ^uch appropriators should be brought
into court by a cross-bill.''^ The contention that water and ditch
rights sought on eminent domain may conflict with the rights of
other appropriators who are not parties to the action cannot be
raised.*^ That prior appropriators below stream will have a right
to complain gives an appropriator above no right of action against
a diversion by a defendant as between the two. If plaintiff fears
that he will be blamed by the lower appropriators for defendant's
diversion, he should join them as defendants.''^

Where there are several plaintiffs, their rights among themselves
cannot be determined if they have not made issue thereof between

too Water Co., 141 Cal. 178, 74 Pac.
762; Larimer ete. Co. v^ Water Sup-
ply Co^ 7 G61o. App. 225, 42 Pac.
1020; Bnekers ete. Go. v. f^armers'
ete. Co., 31 Ck>lo. 62, 72 Pae. 49; Clark
V. Acblejr, 34 Colo. 285, 82 Pac. 588;
BniUiart v. Meiberg, 37 Colo. 187, 86
Pae. 99, 6 L. B. A., N. S., 1104;
Sebneider v. Schneider, 36 Colo. 518,
86 Pae. 347; Crippen ▼. Glascow,
(Colo.), 87 Pac. 1073; State v. Dis-
trict Court, 34 Mont. 233, 85 Pae.
525; Harden v. Long, 8 Or. 244;
Browning ▼. Lewis, 39 Or. 11, 64 Pae.
304; MeCall ▼. Porter, 42 Or. 49, 70
Pac. 820, 71 Pac. 976; Dnekworth v.
WatsoBTille etc. Co., 150 Cal. 520, 89
Pac. 398; People's Co. y. Fresno Co.
CCal. Snp.), 92 Pac. 77; Gntierres v.

Albuquerque etc. Co., 188 U. S. 545,
47 L. ed. 588, 23 Sup. Ct. Bep. 338.
But see Brown ▼. Baker, 39 Or. 66, 65
Pac. 799, 66 Pac. 193.

71 Gutierres v. Albuquerque etc.
Co., 188 U. 8. 545, 47 L. ed. 588, 23
Sup. Ct. Bep. 338. The right "can-
not be vicariously contested by an-
other on behalf of the owner of the
better right.'' Mr. Justice Shaw in
Duckworth v. Watsonville etc. Co., 150
Cal. 520, 89 Pae. 338.

72 Humphreys v. McCall, 9 Cal. 59,
70 Am. Dec. 621.

78 Schneider y. Schneider, 36 Colo.
518, 86 Pae. 847.

74 Larimer etc. Co. v. Water Sup-
ply Co,, 7 Colo. 225, 42 Pae. 1020.

310

THE LAW OF APPBOPRIATIOX.

S 196

themselves. Like\^4se of several defendantsJ'' To determine rights
of several plaintiffs or defendants ivter se, they must join issue
inter 5C J* Defendant may file a cross-bill for this purpose.*"

That there are other wrongdoers is no defense to an action for
damages or injunction,^® though it has been held that if there are
sufficient other wrongdoers taking the whole even without defend-
ant, such total diversion by others is a defense.''® This should seem
to be the rule only where it amounts to a disproval that defendant
contributed at all to the injury.

Agiain, persons against whom an action is brought to cancel their
rights in an Irrigation company cannot complain that the action
is not also maintained against others having no 'better rights.^

The question whether the appropriation of water interferes
with the rights of other appropriators cannot be raised by parties
who are strangers to such other appropriators not parties to the
action.®* Rights of strangers cannot be set up in condemnation
proceedings.®^ Nor, in an action in Colorado to change the point
of diversion, is it any defense that the change might injure inter-
mediate users on the stream who are not parties to the action.®^

A statute just passed in Montana ®* seems to say that appro-
priators are bound by decrees in suits decided prior to their appro-
priation, though not parties thereto. Except possibly on the theory

76 Nevada etc. Oo. y. Bennett, 30
Or. 59, 60 Am. St. Rep. 777, 45 Pac.
472.

76 Bathgate ▼. Irvine, 126 Cal. 135,
77 Am. St. Rep. 158, 58 Pac. 442,
commented on in Montecito etc. Oo.
V. Santa Barbara, 144 Cal. 578, 77
Pac. 1113.

77 Rickey V. Wood, 152 Fed. 22;
Ames etc. Oo. v. Big Indian etc. Oo..
146 Fed. 166.

78 Gould V. Stafford, 77 Oal. 66, 18
Pac. 879 ; Lakeside Ditch Oo. v. Orane,
80 Ckl. 181, 2 Pac. 76.

79 West Point etc. Oo. v. Moroni
etc. Oo., 21 Utah, 229, 61 Pac. 16.

so Blakelej v. Ft. Lyon Oo., 31 Oolo.
224, 73 Pac. 249.

81 Giitierres ▼. Albuquerque etc. Oo.,
188 U. 8. 545, 47 L. ed. 588, 23 Sup.
Ot. Rep. 338 ; Senior v. Anderson, 138
Cal. 716, 72 Pac. 349; Utt v. Frey, 106
Oal. 396, 39 Pac. 807; Clark v. Ash-
ley, 34 Colo. 285, 82 Pac. 588; Burk-
art V. Meiberg, 37 Oolo. 187, 86 Pac.

99, 6 L. B. A., N. 8., 1104; SUva v.
Hawkins (Cal. Sup., Oct. 3, 1907), 92
Pac. 72; Buckers etc. Co. v. Farmers'
etc. Co., 31 Colo. 62, 72 Pac. 49;
Seven Lakes Oo. v. New Loveland etc.
Co. (Colo.), 93 Pac. 485.

It may be remarked that the rule
is the same regarding the rights of
riparian proprietors in jurisdictions
recognizing such rights. That ripa-
rian rights are being infringed cannot
be set up by anyone but the ripirian
owner : People 's etc. Co. v. Fresno etc.
Co. (Oal. Sup., Sept. 26, 1907), 92 Pac.
77 ; Duckworth v. Wat^onville etc. Co.,
150 Oal. 520, 89 Pac. 338; Mason ▼.
Hill, 5 Bam. & Aid. 1; Lux v. Hag-
gin, 69 Cal. 255, 294.

82 Denver etc. Oo. v. Denver etc
Co., 30 Colo. 204, 69 Pac. 568, 60 L.
B. A. 383. See infrOy sec. 264.

83 Crippen v. Glascow (Colo.), 87
Pac. 1073; Lower Latham etc. Co. v.
Bijou etc. Co. (Oolo.), 93 Pac. 483.

S4 Laws 1907, p. 489, sec. 12.

PROTECTION OF THE RIGHT.

311

'V.

% %. V

^o^

^4.

Hing as additional notice, operating as a notice of

^ violates a rule '^as old as the law, that no

'^ in his rights of property, as well as in his

t his day in court, "®^ and its constitu-

d. The Montana court has held that a

-^ were not parties to the action and

'Higation.^

'^ ±

o^ 'V

•-t.

•<>:

"•

Tnrifldiotion.:— A diversion

injury to every part of

o in .Tulare County, for

. Fresno County, the ditch

tt a ditch in two States; a di-

d in Wyoming into which State

'^>^-

^oove cited,^ plaintiff and defendant di-
.ungs River in Fresno County. Plaintiff's
«enty miles in length, of which about eighteen
. ulare County, and the damage was sustained by
the last-named county, in which county the action was
The acts complained of being the prevention of water
^ flowing in plaintiff's ditch, which was located in both counties,
i^hile the specific act^of diversion complained of occurred in Fresno
Coonty, it was held that the subject of the action was in both coun-
ties and the action might have been brought in either.

An appeal from the State Engineer to a State court is removable
to the Federal court.**^

A suit to determine priority between appropriators does not in-
volve a Federal question merely because it is concerned with section
2339 of the Revised Statutes of the United States.*^

» TerreU ▼. Allison, 21 WaU. 293,
22 L. ecL 634, U. S. Sup. Ot. Bep.

M State V. District Court, 34 Mont.
233, 85 Pac. 625.

S7 Lower Kings River etc. Co. v.
Kings River etc. Co., 60 Oal. 408;
Last Chance etc. Co. v. Emigrant etc.
Co 129 Cal. 277, 61 Pac. 960 ; Deseret
etc.' Co. v. Mclntire, 16 Utah, 398, 52

Pac. 628.

88 Ante, sees. 98, 152. See Willey
X Decker, 11 Wyo. 496, 100 Am. St.
Bep. ^3^* ^^ ^^^' ^^^' citing and re-

lying'on Lower Kings River etc. Co.
V. Kings etc. Co., iw^gra,

89 Lower Kings River etc. Co. r.
Kings River Co., «upra.

90 Waha Co. v. Lewiston Co.
(Idaho), 158 Fed. 137.

91 Telluride etc. Co. v. Rio Grande
etc. Co., 175 U. S. 639, 44 L. ed. 305,
20 Sup. Ct. Rep. 245. As to Fed-
eral jurisdiction on the ground of di-
versity of citizenship, see Anderson v.
Bosman, 140 Fed. 10.

312 THE LAW OF APPBOPBIATION. § 198

A State engaging directly in diverting water or licensing those
who are, may be sued by a lower State acting as ** parens patriae/'
and the supreme court of the United States will have original
jurisdiction.**

§ 198. Injunetum, — ^The most efficient remedy is, of course
the writ of injunction, whereby interference is stopped forthwith.
The chief requisites to support a case for an injunction are as fol-
lows:

The damage involved must be irreparable.^ An injury to a ditch
which will not destroy its efficiency and can be easily repaired,
will not support a case for an injunction — ^the owner will be left to
his less drastic remedies.^ To be irreparable it is not necessary
that the damage should be measurable in money to a large sum.^
It is equally irreparable if a continuance of it would ripen into
a right, by prescription, resulting in a total loss to the owner, though
the act itself causes slight or no money damage at all.^ The in-
junction in such case is granted for the vindication and pres^^ation
of plaintiff's right.*'

The cases just cited, affirming the doctrine of 'injuria sifie
damno^' under the law of appropriation should be distinguished
from those affirming that doctrine under the law of riparian rights,
as considered at length hereafter.^ In so tenf as these eases allow
the injunction in the absence of present damage, they seem to
affirm that the appropriation does not depend upon present use;
which is contrary to the entire theory of the law of appropriation.
The granting of the injunction without present damage is proper at
common law, which looks as much to future use as to present use ;
but the law of appropriation is based on actual present beneficial

02 Kansas v. Colorado, 185 U. 8. M Greighton v. Evans, 53 OftL 55;

125, 46 L. ed. 838, 22 Sup. Ot.* Bep. Moore y. Clear Lake etc. Co., 68 CaL

552. 146, 8 Pae. 816; Standford ▼. Felt,

82 Ladd ▼. Bedle, 12 Wyo. 362, 75 71 Cal. 249, 16 Pae. 900; Conkling ▼.

Pae. 691; Krause ▼. Oregon Steel Co., Pacific etc. Co., 87 Cal, 296, 25 Pae.

77 Pae. 833; Watts v. Spencer (Or.;, 399; Walker v. Emerson, 89 GaL 456,

94 Pae. 39. 26 Pae. 968; Mott v. Ewing, 00 Ckl.

M Clark V. WiUett, 35 CaL 534; 231, 27 Pae. li»4; Barnes ▼. Sabron,

Lorens v. Waldron, 96 QeiI. 243, 31 10 Nev. 217; Vestal t. Young, 147

Pae. 54. Cal. 715, 721, 82 Pae. 381, 383.

W Heilbron ▼. Fowler etc. Canal »7 Brown v. Ashley, 16 Nev. 312.

Co., 75 CaL 426, 7 Am. St. Bep. 183, 98 Sec. 316 et seq.
17 Pae. 535; Spargur y. Heard, 90 .
Cal. 221, 27 Pae. 198.

S 198

PBOTECTION OF THE RIGHT.

313

use, and does not favor the protection of a right not in actual use ;
does not desire to protect non-use as does the common law.^ The
application of the doctrine of "injuria sine damno** in the ab-
sence of damage to actual use, may certainly be questioned
under a stystem of law that recognizes no right aside from
beneficial use.^^ In stating the distinction between the law
of appropriation and that of riparian rights in this respect it has
been said: ''In so far, however, as the rights of the plaintiffs rest
upon prior appropriation and use,. it was no doubt necessary for
them to show that the proposed diversion would diminish the flow of
water which they had been receiving for use upon their lands." ****
The modem rule is to regard injunctions as based strictly on bene-
ficial use, and as not restraining a defendant while the plaintiff
is not himself using the water ,^^ so that only where there is actual
damage to present use would an injunetion be granted to prevent
prescription. In the absence of sueh damage no prescription
would arise.

Instances of irreparable damage are such as pollution of the
water,^^ or that the life of fruit trees will be destroyed,*^ or
that a continuance of the diversion would ripen into title by ad-
verse use.^^ Injunction will not be granted where the act would
not ripen into an easement, and causes no actual damage, as where
there is water enough for all,^^ or where the diversion is during
plaintiff's non-use,*®^

This element (irreparable damage) is not present where plaintiff
has already taken or can easily take means to prevent the in jury,^^
or where defendant has abated the nuisance before the decree,^^
an injunction will be refused.

w See Mupra, see. 168, Beneficial
Use.

100 See Nevada etc. Co. v. Kidd, 37
CaL 282.

101 Huifner t. Sawday (CaL Sup.),
94 Pac 424. Italics ours.

102 Gotelli T. Cardelli, 26 Nev. 382 ;
Twaddle y. Winters (Nev.), 85 Pac.
283; Medano etc Co. y. Adams,
29 Colo. 317, 68 Pac. 431; Mann v.
Parker, 48 Or. 821, 86 Pac. 598; Gar-
Uner y. Wright (Or.), 91 Pac. 286.

108 Smith y. Steams Bancho Co.,
129 Cal 58, 61 Pac. 662.

104 Cnshman y. Highland Ditch Co.,
3 Colo. App. 437, 33 Pae. 344.

106 Rigney v. Tacoma etc. Co., 0
Wash. 576, 38 Pae. 147, 26 L. B. A.
425, and cases already cited.

loe Clough y. Wing, 2 Ariz. 371, 17
Pac. 453.

lOT Neyada etc. Co. v. Kidd, 37 Cal.
282 ; Brown y. Smith, 10 CaL 508.

108 Atchison v. Peterson, 1 Mont.
561, 20 Wan. 507, 22 L. ed. 414.

109 McCarthy y. Gaston etc. Co., 144
Cal. 542, 78 Pac. 7.

314

THE LAW OF APPROPBIATION.

S9 199, 200

§ 199. Injunction (Continued). — The damage must be pros-
pective. The interference must be likely to continue in the future,
or there must be a threat of continuance.^*® An injury to a ditch
already accomplished in the past will not support a case for an in-
junction.*** •

§ 200. Injunction (Continued). — There must be no laches or
delay.**^ Parties who have appropriated water for irrigation pur-
poses pursuant to law, and continued the use of water under such
appropriation for more than sevfe years, cannot be enjoined from
the continued use of such right by a lower riparian owner whose
mill privilege may be injured thereby. His remedy is an action
for damages.**' Where a ditch is built over one's land, his remedy
after delay is solely for damages. He cannot destroy it by force.
On the contrary, force will be enjoined.***

The defense of laches is not made out where defendant was urged
solely by extreme necessity for water, hoping plaintiff would not
interfere, but proposing to continue, nevertheless, until plaintiff
prevented him. Holding that no laches were shown in the case, it
is said : ****

''It is suggested that, although the facts found may come short
of creating an estoppel, they are sufficient to show that the plaintiffs
are barred by their laches. It is well-established doctrine that
the defense of laches does not rest entirely upon lapse of time, nor
require any specific period of delay, as does the statute of limi-
tations. But in order to constitute laches, there must be something
more than mere delay by the plaintiff, accompanied by an expendi-
ture of money or effort on the part of the defendant. It must
also appear that it will be inequitable to enforce the claim. The
reason upon which the rule is based is not alone the lapse of time

110 Tenney v. Miners' etc. Co., 7
Cal. 340; Orcutt v. Pftsadena L. & W.
Co. (Cal. Sup., Jan. 2, 1908), 93 Pac.
497.

111 Tuolumne etc. Co. v. Chapman,
8 Cal. 392; Clark v. Willott, 35 Cal.
534; Lorenz v. V^aldron, 96 Cal. 243,
31 Pac. 54.

112 Lux V. Haggin, 69 Cal. 255, at
265, 10 Pac. 674.

113 aine V. Stock (Neb.), 102 N.
W. 265.

114 The case turned also on pecu-
liar facts regarding Alaska mining
claims, on the balance of convenience,
on the fact that the ditch owner was
entitled to condemn right of way, and
on something like blackmail by claim
owners and other peculiar facts. Mio-
cene etc. Co. ▼. Jacobsen, 146 Fed.
680. Cf, McCook v. Crews (Neb.),
102 N. W. 249.

116 Verdugo W. CJo. v. Verdugo
(Cal. Sup., Jan. 23, 1908), 93 Pac.
1021.

§§ 201, 202

PROTECTION OF THE BIGHT.

315

during which the neglect to enforce the right has existed, but the
changes of condition which may have arisen during the period in
which there has been neglect/' "®

§ 201. Injunction (Oontinued). — There is no necessity of first
making out the legal right at law.^*'' In Lux v. Haggin, the court
says: ** Under our codes the riparian proprietor is not required to
establish his right at law by recovering a judgment in damages be-
fore applying for an injunction. The decisions (in cases of alleged
nuisances) based on the failure of the complainant to have had
his right established at law have no appositeness here. Here the
plaintiff must, indeed, clearly make out his right in equity, and
show that money damages will not give him adequate compensa-
tion. If he fail to do this, relief in equity will be denied; but,
if he proves his case, relief will be granted, although he has not
demanded damages at law. In the case at bar the plaintiffs do not
admit that damages would constitute compensation, and ask for an
injunction until they shall recover such compensation in an action
for damages. The decisions which bear on that class of cases,
and which, require of the plaintiff to show that he has promptly
sought redress at law, have little applicability." ^^®

§ 202. Injunction (Continued). — Mandatory injunctions may
be granted to order abatement of a nuisance, such as the removal of
the means of diversion,"* or removal of a railway embankment,^^
or the removal of an obstruction from the stream,*^^ or to compel*
the removal of dams which have wrongfully diverted water onto

•

plaintiff's property, the effect of which will be to destroy trees and
cut gulches, although plaintiff has not established his right to dam-
ages by a verdict of jury or finding of court,^^ or to put in a

116 Citing Penn. M. L. I. Co. v,
Austin, 168 U. S. 698, 42 L. ed. 631,
18 Sup. Ct. Rep. 223.

1" Lux V. Haggin, 69 Cal. 255, 10
Pac. 674; Tuolumne etc. Co. v. Chap-
man, 8 Cal. 392.

118 While thifl is said of a riparian
proprietor, the same was said of an
appropriator in the Tuolumne case,
on the ground that legal and equi-
table relief under the combined or re-
formed practice is administered in the
same court (whenever the equitable
rules are not overlooked).

118 Bignej v. Tacoma etc. Co,, 9
Wash. 576, 38 Pac. 147, 26 L. R. A.
425 (removal of dam) ; Ramsay v.
Chandler, 3 Cal. 90; Nicholson v. Get-
chell, 96 Cal. 394, 31 Pac. 265.

120 International etc. Ry. v. Davis
(Tex. Civ. App.), 29 8. Wi 483.

121 Nicholson v. Getchell, 96 Cal.
394, 31 Pac. 265; Johnson v. Superior
Court, 65 Cal. 567, 4 Pac. 576; Evans
V. Ross (Cal.), 8 Pac. 88 (dictum).

122 Allen V. Stowell, 145 C^l. 666.
104 Am. St. Rep. 80, 79 Pac. 371, 08
L. R. A. 223.

316

THE LAW OF APPBOPEIATION.

S9 203, 204

meajBuring-box,*^ or to compel restoration of the water diverted.*^
The decree may be molded, enjoining on condition, instead of man-
datory. Thus pollution by tailings from a gold quartzmill will be
enjoined at suit of a prior appropriator whose use for irrigation
is impaired thereby, the decree, being framed to restrain the opera-
tion of the defendant's mill ''until it has mad^ suitable provision
to prevent injury to plaintiff's irrigating ditches, and to the water
used by him. " ^^

§ 208. Injunction (Continued). — By way of defense to an in-
junction suit, the defense that the water would not reach plaintiff
anyway has often been asserted, and the authorities conflict where
the acts of defendant are, within possibility, a contributing cause.
Injunction was granted, for example, in one case,*^ saying such
defense is as old as irrigation and perhaps as old as trespass it-
self.*^ In denying the validity of the defense, a recent case says
that while the natural flow may not reach plaintiff on the surface,
the upper diversion might deprive him of the benefit of the sub-

flOW.»28

§ 204. Injunction (Oontinned). — ^Another defense on which the
authorities are in great conflict is that known as ''the balance
of convenience" or "comparative hardships." The cases conflict
as to the propriety of the rule as to balance of convenience and
also as to its application. It is sometimes said that the balance
of convenience will not be oonsidered ; ^^ that slight damage to
plaintiff is no def ense,^^ and that expense to defendant Is not to be
considered. ^^^ In Newport v. Temescal etc. Co.^** it is said, speak-

128 Elliott V. Whitmore, 10 Utah,
246, 37 Pae. 461.

124 Monteeito etc. Co. v. Santa Bar-
bara, 144 Cal. 578, 77 Pac. 1113.

126 Brown t. Gold Coin etc. Co.
(Or.), 86 Pac. 361.

i» Morris v. Bean, 146 Fed. 436.

127 For examples where the injunc-
tion was refused on a showing that
the stream would dry up anyway be-
fore reaching plaintiff, or not reach
him for other reasons, see Paige v.
Rocky Ford etc. Co., 83 Cal. 84, 21
Pac. 1102, 23 Pac. 875; Union Min.
Co. V. Dangberg (C. C. Nev.), 81 Fed.
73; Raymond v. Wimsette, 12 Mont.
551, 33 AnL St. Rep. 604, 31 Pac. 537 ;
Outierrez v. Wege, 145 Cal. 730, 79

Pac. 449; West Point etc. Co. v.
Maroni etc. Co., 21 Utah, 229, 61 Pac.
16. See supra, see. 62.

128 Huffner v. Sawday (Cal. Sup.),
Feb. 18, 1908, 94 Pac. 424. See i^ra,
Part III, c. I.

129 6 Poroeroy's Equitable Reme-
dies, sec. 562, note 21.

ISO Carron v. Wood, 10 Mont. 500,
26 Pac. 388, and cases heretofore
cited.

131 Cole Silver M. Co. v. Virginia
etc. Co., Fed. Cas. No. 2989; Suffolk
etc. Co. T. San Miguel etc. Co., 9 Colo.
App. 407, 48 Pac. 828.

132 149 Cal. 531, 87 Pac. 372, 6 L.
R. A., N. S., 1098.

$ 204 PEOTECTION OF THE RIGHT. 317

ing of percolating water: **We do not set forth the small quantity
of the land so irrigated out of the tract of forty or fifty square
miles with any idea that because the use was little and the value
small the defendant and the inhabitants of Corona which it sup-
plied should in any way receive any preference, or should for such
reason be thought to have any superior right. Such an argument
has no standing in a court of law and is distinctly repudiated." ^^
In another case it is said that it is not enough for defendant to
say that, admitting plaintiff's right to be a substantial one, defend-
ant in invading it does so because he cannot otherwise work his
mine, and will take all precaution to keep the money damage
small. That is no defense to an injunction the court held,*** say-
ing: ''But even had the defendants, after having admitted the
property rights of plaintiffs in their ditch, as alleged in their com-
plaint, admitted their intention to wash away the ground upon
which it was constructed, as alleged by plaintiffs, and alleged
in justification of such purpose their design to substitute in place of
so much of plaintiff's ditch as they should wash away, a flume
or metal pipe for conducting the water for the use of plaintiffs,
and that such flume or pipe would answer plaintiffs' purposes as
well as the ditch, with a prayer that the court, by its judgment and
decree, authorize them to consummate their designs, upon their
filing a bond payable to plaintiffs, conditioned to keep such flume
or metal pipe in repair until plaintiffs' claims should be worked
out, I know of no principle of law or power in a court of equity
to justify or authorize such an invasion of the property rights of
one private party to serve the wishes, convenience or necessities of
another private party. Such a principle, if once adopted by judi-
cial tribunals upon ground of necessity in view of the peculiar
relations and character of private property rights of miners on the
public domain, would readily be invoked as applicable to other
property rights, and its practical application would result in a
system of judicial condemnation of the property of one citizen to
answer an assumed paramount necessity or convenience of another
citizen. It is the duty of courts to protect a party in the enjoy-

138 "AffaioBt a clear and explicit Pf^^^il'' ^^^. •^°^? 5* ^^}^^ ^^

*.,!- ^# !««. «/* «*Mi».Anf #»«>«, ir,«/^« Vbii SicJcle V. Haines, 7 Nev. 249.

rule or law, no argument from incon- ,«> /-i xt i ^-i n-.i oto

, ' ^ -ui J ^^ Gregory v. Nelson, 41 Cal. 279,

venience, however forcibij urged, can . poo

318

THE LAW OF APPROPRIATION.

S 204

ment of his private property, not to licence a trepass upon such
property or to compel the owner to exchange the same for other
property to* answer private purposes or necessities."'^

On the other hand, many cases say that because of the rule known
as the ** balance of convenience/' an injunction may be refused; '^
that is, because the loss to the appropriator (plaintiff) would be
small, as compared to the loss to the defendant if his works were
enjoined. Thus, no injunction will be granted if the defendant
will restore to the stream the amount he has been taking from it.**'
** Where the title to the property is in dispute between the parties,
the extent of inconvenience and expense to which the defendant
would be subjected by the granting of the injunction, as compared
. with the injury the plaintiff would be likely to suffer if refused,
often forms an important consideration in determining the right to
an injunction. " '^*^ The refusal of an injunction because of the
rule concerning the bAance of convenience is perhaps illustrated in
the following case. A mining company was depositing tailings
upon land below its mill. For the purpose of speculation, plain-
tiff bought up this land, and asked an injunction. That was refused
on the ground that it would mean ruin to the mining company, and
plaintiff had bought the land merely with a view to litigation.'**
It was held in another case that where, in an action to recover
damages and. to enjoin defendant from maintaining a ditch upon
plaintiff's land, it appears that the land was of little value; that
the injury to the land was not real ; that the damages were merely
nominal; that defendant was not insolvent; and that plaintiff's
remedy at law was adequate, then the court did not err in refusing
to grant an injunction.'^

135 See Pomeroy on Riparian Rightn,
sec. 67; Weiss v. Oregon etc. Co., 13
Or. 496, 11 Pac. 25o; High on In-
junctions, sec. 795; Woodruff v. North
Bloomfield etc. Co., 18 Fed. 753, 9
Saw. 441; Teel v. Rio Bravo Oil Co.
(Tex. Oiv. App.), 104 S. W. 423.

136 Slade V. SuUivan, 17 Cal. 102;
Clark V. Willett, 35 Cal. 534; Heil-
bron V. Fowler etc. Canal Co., 75 C^al.
426, 7 Am. St. Bep. 383, 17 Pac. .53.5;
Modoc etc. Co. v. Booth, 102 Cal. 151,
36 Pac. 431.

W7 Montecito etc. Co. v. Santa Bar-
bara, 144 Cal. 578, 77 Pac. 1113.

138 Real Del Monte M. Co. v. Pond
M. Co., 23 <;al. 82. Citing fficks v.
Compton, 18 Cal. 210; 3 DanieU'^
Chancery Practice, 1860; Adams'
Equity, 357; Bruce v. Delaware &
Hudson Canal Co., 19 Barb. (N. Y.)
371.

13» Edwards v. AUouez Co., 38
Mich. 46, 31 Am. Rep. 301.

140 Hoye v. Sweetman, 19 Nev. 376,
12 Pac. 504, and see Mann v. Parker
(Or.), 86 Pac. 598; Monteeito etc.
Co. V. Santa Barbara, 144 Cal. 578,
77 Pac. 1113.

S 204

PEOTECTION OP THE RIGHT.

319

. The rule as to the balance of convenience, or comparative hard-
ship, is more favored in refusing a preliminary injunction than a
permanent one.^*^

The same conflict appears where the hardship is on the public
instead of on a private party. Here again Mr. Pomeroy states
that the better rule is that an. in junction should not be refused on
that account.^^^ In a recent case the Idaho court refused to con-
sider that its decree enjoining the deposit of tailings in streams
would depopulate Shoshone County and cause the abandonment of
all mining,^^ saying: **It is earnestly urged by counsel for re-
spondents that if this court should hold that there is error in sus-
taining the demurrers to the complaints, or either of them, it
would result in Hhe depopulation of Shoshone County, the aban-
donment of all mining and milling therein, and the consequent bank-
ruptcy of the inhabitants thereof.' Deplorable as this might be, if
true, it furnishes no excuse for the court to shirk its responsibilities
in disposing of the question before us on the merits. The law
is no respecter of persons, corporations or individuals, and in its
creation and enforcement reaches out and protects the lone set-
tler in his rights, let them be ever so meager, as well as the capi-
talists, the corporation or individual with it or his millions

The law does not measure the rights of litigants by the amount
involved, nor the manner in which it may affect others not parties
to the litigation." 1**

1*1, California etc. Co. v. Enter-
prise etc. Co. (C. C. Southern Dist.
Cal.), 127 Fed. 741.

And as to preliminary injunctions,
it has been said* concerning percolat-
ing water (Katz t. Walkinshaw, 141
Cal. 116, 99 Am. St. Rep. 35, 70 Pac.
663, 74 Pac. 766, 64 L. R. A. 236) :
' * In cases involving any class of
rights in such waters, preliminary in-
junctions must be granted, if at all,
only upon the clearest showing that
there is imminent danger of irrepar-
able and substantial injury, and that
the diversion complained of is the
real cause."

142 Pomeroy 's Equitable Remedies,
sec. 531, but citing conflicting au-*
thorities.

148 HiU V. Standart Min. Co., 12
Idaho, 223, 8S Pae. 908.

144 On the other hand, the same

opinion quotes the following expres-
sion from McCarty v. Bunker Hill etc.

Co. (Idaho), Fed. , per

Judge Beatty: ** 'Without detailing
the reasons, such order would mean
the closing of every mine and mill,
of every shop, store, or place of busi-
ness in the Coeur - d ' Alenes. There
are about twelve thousand people, the
majority of whom are laboring peo-
ple dependent upon the mines for
their livelihood; not only would their
present occupation cease, but all these
people must remove to other places,
for the mines constitute the sole means
of occupation, and when they finally
close, Wallace and Wardn^, Gem ani
Burke and their surrounding moun-
tains will again become the abode
only of silence and wild fauna. Any
court must hesitate to so act as to
bring such results.' "

320

THE LAW OF APPBOPEIATION.

§ 204a

In Pennsylvania^**^ the injunction against pollution was refused,
apparently on this ground.*^

The writer ^s understanding of the matter as a general principle
of equity is that extreme balance of hardship on defendant or
CD the public is properly ground for refusal of an injunction, re-
membering that the remedy is an extraordinary one, discretionary
to some degree with the Chancellor, the refusal still leaving the
right to recQver damages at law.

§ 20te. Injunetion (Oontiniied). — Where the public interest is
represented by a public service company, defendant, having the
power of eminent domain, there are authorities that an injunction
may be refused on tender of damages. We have considered this
more at length under the chapter on eminent domain. The
Nebraska court has carried it very far in denying injunction to
riparian owners against irrigation companies making appropria-
tions for irrigation. This ^eems the same principle as that ex-
pressed concerning percolating waters in Katz v. Walkinshaw,***^
saying: ''Where the complainant has stood by while the develop-
ment was made for public use, and has suffered it to proceed at large
expense to successful operation, having reasonable cause to believe
it would affect his own water supply, the injunction should be re-
fused, and the party left to his action for such damages as he can
prove. "*^

Though probably the question of laches is also involved in this
statement, yet so far as only the character of defendant as admin-
istering a public use is concerned, the question appears one solely
of the hardship on the public, and hence falls within the contested
region as to the soundness of the rule as to balance of convenience.^*^
So far, however, as the* defendant's power of eminent domain

145 Pennsylvania Coal Co. v. San-
derson, 113 Pa. St. 126, 57 Am. St.
Bep. 445, 6 Atl. 453.

146 In Arizona the question has
arisen between the miners at Clifton
and Morence and the farmers of the
upper Gila Valley, the farmers hav-
ing in December, 1907, before Judge
S. F. Nave, secured an injunction
against the deposit of tailings in the
San Fmncisco Biver.

147 141 Cal. 116, 99 Am. St. Bep.

35, 70 Pac. 663, 74 Pac. 766, 64 L.
B. A. 236.

148 Citing f^resno .etc Co. v. South-
em Pacific Co., 135 Cal. 202, 67 Pao.
773; Southern CaL By^. Co. v. SkuBon.
138 Cal. 342, 94 Am. St. Bep. 58, 71
Pac. 352, which were railway easee.

149 See, also, Monteeito W. Ob. v..
'Santa Barbara, 144 Oal. 578, 77 Pac.

1113; Newport v. Temescal W. Co.,
149 Cal. 531, 87 Pae. 372, 6 L. B. A.,
N. S., 1098; Verdugo W. Co. v. Ver-
dugo (Cal. Sup.), Jan. 23, 1908.

SS 205, 206 PBOTECTION OP THE RIGHT. 321

is alone regarded, it may be within the equitable jurisdiction to
prevent multiplicity of suits by reaching, in the injunction suit,
the same result as upon a condemnation suit; in which case, how-
ever, it may violate the constitutional provisions guaranteeing a cer-
tain procedure in exercising the power of eminent domain.^*^

Pending irrigation litigation a bond may be given in lieu of an
injunction.^**^

An injunction is not in force until the order is entered in the
proper book.^'^^

§ 205. Injunction (Continued). — As a short statement of the
equitable jurisdiction to enjoin, we quote the following from an
opinion by Judge Field in the supreme court of the United States :

'*But whether, upon a petition or bill asserting that his rights
have been invaded, a court of equity will interfere to restrain
the acts of the party complained of, will depend upon the character
and extent of the injury alleged ; whether it be irremediable in its
nature; whether an action at law would afford adequate remedy;
whether the parties are able to respond for the damages resulting
from- the injury, and other considerations which ordinarily govern
a court of equity in the exercise of its preventive process of in-
junction. ' ' 1®

§ 206. Actions to Quiet Title, Settling Bights, and Allied BiUs.

Many suits have been allowed to quiet title to water rights, as to
other property.^" In Katz v. Walkinshaw ^^ it was said, in pass-
ing, that a suit will lie by a landowner to have his right to percolat-
ing water declared against the appropriators, though he has sunk no
well, or otherwise made use of it ; but that will probably be a matter
for further consideration if the case ever arises.**^

If there are several appropriators or other claimants on the same
stream, a suit may be brought to have the rights of all settled and
determined. In such a case all parties on the stream must be

iM See infra, sees. 3319-342. ^^ Atchison v. Peterron, 87 U. S.

Tu^^-^S''^? ^'T- P'^- ^?^J ^°^ ^^iM^I. "^.f ptregoj V. SeUick, 79

probably this is withm the inhereiit ^al. 568, 21 Pteic. 966; Senior v. An-

power of a court of equity in the ab- jerson, 130 Cal. 29, 62 Pac. 563.

sence of statute. 155 141 cal. 116, 99 Am. St. Rep.

152 Biekey L. & W. Co. ▼. Glader 35, 70 Pac. 663, 74 Pac. 766.

(Cal. Sup.), Feb. 29, 1908. IM See infra, sec. 369a.

Water Righta— 21

322

THE LAW OF APPEOl>RIATION.

S 206

brought into court.*^^ The court must then make a specific finding
of the amount to which each is entitled,^^ definite in time and
amount.**® Defendant may file a cross-bill.**®

**No subject is, perhaps^ so prolific of controversies as the use
of water by different claimants for irrigation purposes, and a de-
cree concerning it should be as certain as the language can make
it/' ^«i This apportionment may be in time as well as amount, giv-
ing each the use of the whole for so many days or hours where there
are appropriations originally based on time; that is ''periodical
appropriations." *^ In making the apportionment, the court must
confine itself to a declaration of pre-existing rights, not the creation
of new ones ; and if a stream becomes, from natural causes, insuffi-
cient for all claimants, prior appropriators must be given their
full amount at all times in their proper order in preference to later
claimants.**® In Union Min. Co. v. Dangberg*®* Judge Hawley,
nevertheless, held that the deficiency could be Apportioned among
appropriators by periods of time as though their rights were cor-
relative as at common law. This is certainly in derogation of the
doctrine of priority, whereby the prior appropriator has a para-
mount exclusisre right at all times. It was, however, followed in
Anderson v. Bassman,*** which has been criticised On this ground.*^

An action to quiet title to a water right, being real estate, can-
not be brou^t by an administrator.*^ The Utah court wiU not
quiet title to Idaho claims on a stream, though it flows into Utah.*®

167 Chamock v. fiignerra, 111 Cal.
473, at 481, 52 Am. St. B^p. 195,
44 Pac. 171, 32 L. R. A. 190: Frost
V. Alturas etc. Co., 11 Idaho, 294, ^1
Pac. 996. Bee Creer t. Bl^nerof t etc.
Co., 13 Idaho, 407, 90 Pac. 228. See
Rickey v. Wood, 152 Fed. 22.

166 Lakeside etc. Co. v. Cfane^ 80
Cai. 181, 22 Pac. 76.

189 Duckworth v. Watsonvilie etc.
Co., 150 Cal. 520, 89 Pac. 338.

i{0 See Rickey v. Wood (C. C. A.),
152 Fed. 22; Ames etc. Co. v. Big
Indian etc. Co., 146 Fed. 166.

lei Authors v. Bryant, 22 Nev. 242,
38 Pae. 439.

162 Cave V. Crafta, 52 Cal. 135;
Santa Paula Water Co. v. Peralta,
113 Cal. 38, 45 Pac. 168; Bodgers
V. Pitt, 129 Fed. 932; Union etc. Co.
V. Dangberg, 81 Fed. 73; Craig v.
Crafton etc. Co., 141 Cal. 178, 74 Pac.
762. In genera], see, also, Frey v.

Lowden, 70 Cal. 550, 11 Pac. 838;
Steinberg v. Meyer, 130 CaL 156, 62
Pac. 483; Bledsoe v. Decrow, 132 Cal.
312, ^ Pac. 397; Bose v. Mobmelr,
142 Cal. 322) 75 Pac. 905; Suisnn t.
De Frietas, 142 Cal. 350, 7$ Pac.
1092; Miller t. Thompson, 139 CaL
643, 73 Pac. 583.

163 See Riverside etc. Co. v. Sargent,
112 Cal. 230, 44 Pae. 560. See iupm,
sees. 44-47, 52; infra, sees. 300, 426,
427.

i«* 81 Fed. 73.

165 140 Fed. 14.
*iOB Ante, sees. 45-52.

167 Travelers' Ins. Co. v. Childs, 25
Colo. 360, 54 Pac. 1020.

168 Conant v. Deep Creek Co., 23
Utah, 627, 90 Am. St. Rep. r21, 66
Pac. 188; Willey v. Decker, 11 Wyo.
496, 100 Am. St. Rep. 939, fd Pac.
210. See ante, sec. 98, Interstate
Streams.

§ 207 PROTKCTION OP THE BIGHT. 323

An irrigation district cannot sue to determine the rights of land-
owners in the distribution of water. ^®

Procedure for settling rights forms an important part of the
recent legislation, as hereafter set forth. ''It is manifest from a
careful examination of our statutes and from the repeated decisions
of our courts' that our proceeding, if not technically one to quiet
title, is quite analogous thereto." "*^ Such a special proceeding is
exclusive of technical actions to quiet title.^^^ But the same court
recently also held:"^ **By the constitution the district courts of
this State are courts of general jurisdiction, both in law and in
equity. By virtue of the authority thus conferred, such courts, in-
dependent of statutes, have jurisdiction in matters pertaining
to the adjustment of water rights for the purposes of irrigation." ^'^

Special proceedings for settling rights of tenants in common
inter se have already been discussed."*

In partition suits between tenants in common, an actual appor-
tionment, being the creation of separate new right, cannot be
made, and the only order will be a sale and a division of the pro-
ceeds.*'^*^ The cases just cited to this effect were decided under the
law of appropriation, and laid stress upon the fact that the use was
for mining; while a recent case has taken a contrary view in respect
to the partition of a riparian right where the use was for irriga-
tion."*

§ 207. Specific Performance and Allied Blatters. — A parol sale
of a water right by appropriation receives special treatment, as
elsewhere discussed. Nevertheless equity will give specific per-
formance of parol agreements where part performance has taken
the case out of the statute of. frauds ; *^ as, for example, an agree-

169 little Walla Walla Irr. Diat. v. ®2 ; IjoreiiE v. Jacobs, 59 Cal. 262 ;
Preston, 46 Or. 5, 78 Pac. 982. and see ante, sec. 71.

170 Crippen v. X. Y. Z. Ditch Co., ,^ «!,n''^?Kn 2^^lfi0«\ IV^^
32 Colo 447 7aPAf 797 ^^^- ®"P-> ^^^' ^^» 1908), »« "C.

,V, ™^' ^f^ l/*^, ..« o. 1<>21, not citing the former cases,
ni Fluke V. Ford, 35 Colo. 112, 84 however. See, also, Rose t. Mesmer,

P*c-*^- 142 ObI. 322, 75 Pac. 905, to the

172 Farmers' etc. Co. v. Rio Grande same effect as the Verdugo case.

etc. Co., 37 Colo. 512, 86 Pac. 1042. m Flickinger ▼. Shaw, 87 Cal. 126,

1T8 Citing Broadmoor D. Co. v. 22 Am. St. Rep. 234, 25 Pac. 268, 11

Brookside W. ft I. Co., 24 Colo. 541, L- »• A. 134; Blankenship r. .Whaley,

52 Pac. 792. See KimbaU v. North- 124 Cal. 300, 57 Pac. 79 v ChnrchiU

em Irr. Co. (Colo.), 94 Pac. 333, also v. Russell, Cal., Sept., 1905; Dorris

holding that action to quiet title lies. v. Sullivan, 90 Cal. 279, 27 Pac. 216;

174 Am* 71 Schilling v. Rominger, 4 Colo. 100;

Watts V. Spencer (Or.), W Pac. 39;

175 McGillivray v. Evans, 27 Cal. Coffman v. RobWns, 8 Or. 278.

324 . THE LAW OF APPROPRIATIOX. § 207

ment settling rights and dividing the water, the parties having acted
upon it, taken possession, and acquiesced for some time.*™ The
parol grantee may enjoin a stranger from diverting the water.*^

Similarly, a parol license to use water or build a ditch is revoca-
ble at law, but if acted upon and expense incurred is irrevoca-
ble in equity.*^ A recent case *®^ says: ** Water rights are classed
as real property, and. hence, under the general rule, any agreement
relating thereto must be in writing.*^ But in the case at bar the
agreement was acted upon by placing a measuring-box in the
stream, and actually dividing the water, and by mutual consent
of the parties each was placed in possession of one-half thereof.
To complete the transfer nothing remained to be done except the
execution of a conveyance, conveying a proper proportion of the
water to each. Each had a perfect equity, entitling him to a* deed
from the other. When such is the case, a court of equity, in ac-
cordance with its familiar rules, considering that as done which
ought to be done, will protect the right obtained as readily and
as fully as a legal title. ''^^

In thus enforcing agreements in equity on the principles of
specific performance, another question may arise when the agree-
ment is one with a water supply company. So far as such agree-
ments are primarily for service, it is questionable whether specific
performance can be ordered in view of the asserted rule that equity
cannot order specific performance of contracts for continual ser-
vice . But the supply contract is usually regarded as conveying an

178 Bree v. Wheeler, 4 Cal. App. v. Mooney, 4 Cal. App. 276, 87 Pac.
109, 87 Plac. 255; Combs v. Slayton, 553.

19 Or. 99, 26 Pac. 661. 182 Citing Code Civ. Proc., eeca.

179 Watts V. Spencer (Or.), 94 Pteic. 1971, 1973; Hayes v. Fine, 91 Cal.-
39. i~ V /» ggg^ 2^ p^ ^^g. Blankenship v.

180 Coventon v. Seufert, 23 Or. 548, Whaley, 124 Cal. 304, 57 Pac. 79.

32 Pac. 508; Maple etc. Co. v. Mar- ^83 Citing Flickinger v. Shaw, 87

shall, 27 Utah, 215, 75 Pac. 369; Cal. 133, 22 Am. St. Rep. 234, 25 Pac.

Jensen v. Hunter (Cal.), 41 Pac. 14; 268, 11 L. R. A. 134; Blankenship v.

Lavery v. Arnold, 36 Or. 84, 57 Pac. Whaley, supra, and 142 Cal. 566, 76

906, 58 Pac. 524, citing cases ; McPhee Pac. 235 ; Griseza v. Terwilliger, 144

V. Kelsey, 44 Or. 193, 74 Pac. 401; Cal. 462, 77 Plac. 1034; Bates v. Bab-

75 Pac. 713. cock, 95 Cal. 486, 29 Am. St. Rep.

181 Bree v. Wheeler, 4 Cal. App. 133, 30 Pac. 605, 16 L. R. A. 745; 2
109, 87 Pac. 255. See, also, Bashore Bigclow on Fraud, p. 445. .

S§ 208, 209

PROTECTION OF THE BIGHT.

325

incorporeal hereditament, a water right, rather than a service
right,^** and the tendency is to decree specific performance.^®^

•

§ 208. Actions at Law. — Though every injury to a water right
is not a case for an injunction, it does give a right to recover money
damages at law, beiYig in the nature of a nuisance.^^ In a suit for
damages, the damage must not be alleged as for the value of water
at so much per inch or gallon, but for the damage to plaintiff's
undertaking, consequent to the. loss of the use of the water.^®''

§ 209. Pleading. — Joinder of parties or of causes of. action.
A count for an injunction may be joined with one for damages.*®®
Several owners on the same stream may join as plaintiffs in an in-
junction suit, or be joined as defendants; but cannot join or be
joined in an action at law for damages.^®* A count for diversion
(injury to water right) and for injury to a ditch or other structure
used in connection with the water right may be joined but must
be separately stated.^^ But- in a complaint for diversion and to
have the amount of water to which plaintiff is entitled determined,
these need not be separately stated.**^' A count as appropriator
may be joined with one as riparian owner.'^ .

184 Infra, sees. 419-422.

185 Perrine v. S5an Jacinto etc. Co.,
4 Cal. App. 376, 88 Pac. 293 (dic-
tum) ; Hunt V. Jones, 149 Cal. 2^7, 86
Pac. 688; Clyne v. Benicia Water ('o.,
100 Cal. 310, 34 Pac. 714. Cf. Stan-
islaus W. Co, V. Bachinan ((.al. Sup.,
January 23, 1907), 93 Pac. 858;
Pomeroy*8 Equitable Remedies, sec.
761.

186 Parke v. Kilham, 8 Cal. 77, 68
Am. Dec. 310; Tuolumne etc. Co. v,
(.'hapman, 8 Cal. 392; McCarthy v.
Gaston etc. Co., 144 Cal. 542, 78 Pac.
7.

187 Parks etc. Co. v. Hoyt, 57 Cal.
44.

188 Jacob V. Lorenz, 98 (^al. 332,
33 Pac. 119; Watterson v. Salunbe-
here, 101 Cal. 107, 35 Pac. 432; but
see Foreman v. Boyle, 88 Cal. 290,
26 Pac. 94, semble contra.

180 Bamum v. Hostetter, 67 Cal.
272; Foreman v. Boyle, 88 Cal. 290,
26 Pac. 94; Miller v. Highland etc.
Co., 87 Oal. 430, 22 Am. St. Rep.

254, 25 Pac. 550; Schultz v. Winter,
7 Nev. 130; Ronnow v. Delmue. 23
Nev. 29, 41 Pac' 1074; Montecito etc.
Co. V. Santa Barbara, 144 Cal. 578, 77
Pac. 1113; Saint v. Guerrerio, 17
Colo. 448, 31 Am. St. Rep. 320, 30
Pac. 335; Desert etc. Qo, v. Mclntyre,
16 Utah, 398, 52 Pac. 628; United
States V. Conrad Inv. Co. (Or.), 156
Veil 131. See Rickey v. Wood, 152
Fed. 22; Ames etc. Co. v. Big Indian
etc. Co., 146 Fed. 166; but see Hill-
man V. Newington, 57 Cal. 56, contra
concerning suit for damages.

May join in a suit to settle rights..
Creer v. Bancroft etc. Co., 13 Idaho,
407, 90 Pac. 228.

i»o Nevada etc. Co. v. Kidd, 37
Cal. 282; Bear River Co. v. Boles, 24
Cal. 359.

i»i Patterson v. Mills, 138 Cal. 276,
71 Pac. 177; and see Silver Creek etc.
Co. V. Hayes, 113 Cal. 142, 45 Pac.
191.

i»2 Huffi\er V. Sawday, Cal. Sup.,
Feb. 18, 1908.

326

THE LAW OF APPROPBIATION.

S 210

§ 210. Pleading (Oontiniied) — ^AUegations in Complaint. — ^Ad

appropriator's complaint is distinct from one based on riparian
rights; and an allegation that plaintiff claims as an appropriator
will not allow him to recover, as a riparian proprietor or vies
rersa,^^^ The tw^o rights may be set up in the same complant by
separate counts.^** The appropriator should allege that he is en-
titled to the use of so much water as an appropriator, not that he
is **the owner" thereof. ^*^ He need not allege that defendant has
no right, as that is matter for the defense to plead.*'^

A statement that plaintiff has a priority as appropriator superior
to that of defendant has been held in Colorado not a sufScient
allegation of plaintiff's right, without the facts which show such
appropriation and its priority.^®^ But it is usually held that title
need not be deraigned in the complaint.'"* **It was not only un-
necessary, but it would have been surplusage, for plaintiff to have
pleaded the historical deraignment of its title and the varying
methods of its use."^®* The contrary rule violates the principle
that only ultimate facts, and not evidence, are to be pleaded.

Though, in suit to quiet title to an irrigation ditch, the complaint
alleged plaintiff to be the owner of the ditch in fee, it did not pre-
clude the court from finding a right or ownership in the nature of
an easement.^ Title by prescription can be proved under a gen-
eral allegation of ownership.^^^i

Plaintiff's right should be stated in inches or gallons, and not
Aierely by dimensions of ditch.^*^ Averments of possession of

188 Bivereide etc. Co. v. Gage, 89
Cal. 410, 26 Pa«. 889; San Luis etc.
V. Estrada, 117 Gal. 168, 48 Pac.
1075; Strong v. Baldwin, 137 Cal. 432,
70 Pac. 288. See Shenandoah etc.
Co. V. Morgan, 106 Cal. 409, 39 Pac.
802.

IM Huffner v. Sawday, Cal. Sup.,
Feb. 18, 1908.

IM Smith V. Green, 109 Cal. 228,
41 Pac. 1022.

iw Town of Sterling v. Pawnee Co.
(Colo.), 94 Pittc. 431.

iw Carroll v. Vance (Colo.), 88
Pac. 1069, 8€d, qu In Town of Ster-
ling V. Pawnee etc. Co. (Colo.), 94
Pac. 431, it was held that this aj)-
plied to a bill to quiet title;, but in
Kimball v. Northern Trr. Co. (Colo.),
94 Pac. 333, decided about the same

time, the rule was held not applicable
to bills* to quiet title, but only to
bills for injunction. The former case
went so far even as to hold that plain-
tiff must plead his means of use to
show that it is not wasteful.

iw Beach v. Spokane etc Co., 25
Mont. 379, 66 Pae. Ill; Hague v.
Nephi etc. Co., 16 Utah, 421, 67 Am.
St. Rep. 634, 52 Pac. 765, 41 L. Jt.
A, 311; but see Church v. Stillwell,
12 Colo. App. 43, 54 Pac. 395.

tw Watenumna Water Co. t. Pogue,
151 Cal. 105, 90 Pac. 362.

200 Bashore v. Mooney, 4 Cal. App.
276, 87 Pac. 553.

201 Montecito etc. Co. v. Santa Bar-
bara, 144 Cal. 576, 594, 77 Pac. 1113.

202 Lakeside etc. Co. v. Crane, 80
Cal. 181, 22 Pac. 76.

S§ 211, 212

PROTECTION OP THE JtlGHT.

327

land, mill and water privileges sufficiently allege appropriation.^^
The place of use need not be alleged.^^

§ 211. Pleading (Continued). — The local customs referred to
in United States Revised Statutes, section 2339, need not be al-
leged or proved. In Oregon and Washington there b&s been some
confusion on the point that has not occurred elsewhere. The prin-
ciple is, as stated in Basey v. Gallagher,^^* that the rules of appro-
priation have everywhere in the West now passed into judicial
decision or statute or both, thereby superseding the original cus-
toms on which decisions and statutes are based. The Oregon court
now says it takes judicial notice of the customs, reaching the same
result, but in a roundabout way, which still bases appropriation
on custom instead of on decision and statute.^^ In Washington ^^
it is held that judicial notice will be taken of the fact that at least
that portion of the State east of the Cascade Mountains was in-
cluded in the territory where the customary law of miners was in
force, and the right of appropriating water for agricultural and
manufacturing purposes existed, although the common-law rule of
riparian ownership was a part of the law of the State.^*'^ This
seems to be making separate rules for separate parts of the
State.«»

§ 212. Prfkctice. — The facta and existence of a nuisance to a
water right and the aipount of damages are to be tried by a jury
in a suit at law for damages unless a jury ifif waived.*^ But there
is no right to a jury in a suit in equity for injunctioQ, though
joined with a claim for damages.^^^ The value of expert evidence
has been doubted.^^ The burden of proving an abandoupient ^^^

208 McDonald v. Bear K. etc. Co,
13 Cal. 220.

204 Rincon etc. Co. v. Anaheim etc.
Co., 115 Fed. 543. Contra, Miller &
Lmc V. Bickey, 127 Fed. 573.

304. 87 IT. S. (20 V7aU.) 670.

205 Farkersville etc. Pist. v. Wat-
tier (Or.), 86 Plac. 775.

900 Isaaea v. Barber, 10 Wash. 124,
45 Am. St. Bep. 772, 38 Pac. 871,
30 li. K A. 665.

20T See, also, Drake v. Karbart, 2
Idaho, 716, 750, 28 Pac. 541; Craw-
ford etc. Co. V. Hathaway, 67 Neb.
825, 108 Am. St. Bep. 647, 93 N. W.

781. 60 L. B. A. 889. But see Tel-
luride etc. Co. v. Bio Grande etc. Co.,
175 U. S. 639, 44 L. ed. 305, 20 Sup.
Ct. Bep. 245, and 187 U. S. 579, 47
L. ed. 307, 23 Sup. Ct. Bep. 178

206 See mprn, sec. 16.

200 Chessman ▼, Hale, 31 Mont. 577,
T9 Pae. 257, 68 L. B. A. 410.

210 McCarthy v. Gaston etc. Co., 144
Cal. 542, 78 Pac. 7.

211 Bobertson v. Wilmath (Colo.),
90 Pac. 95; Twaddle v. Winters
(Nev.), 85 Pic. 280.

212 tnfra, c. XIV.

328

THE LAW OF APPROPRIATION.

§ 213

or a right by adverse use ^'* is on the party asserting it. Defend-
ants may file cross-bills.^" In an action by a riparian owner, de-
fendant's claim as appropriator is properly set up by a cross-com-
plaint.2^«

§ 213. Damages. — In alleging damages, the quantity of water
diverted should be alleged, and recovery will be limited to that;
but as the allegation of amount of damages is not a material part
of a complaint, proof of diversion of Less than the precise quantity
alleged, while limiting damages t*hereto, is not a bar to recovery.^®
The damages claimed must be for the injury to plaintiff's enter-
prise consequent to the Icnss of the use of the water, 'not for the
value of the water at so much per inch or gallon, since plaintiff
does not own the corpus of the water, but a usufruct.^^'^

The measure of damages for diversion of water or for injury to a
ditch for irrigation is the depreciation in sale or rental value of the
land from loss of the water ; ^^^ and not the value of the water at
so much per inch or gallon ,2** nor the value of producible crops; ^**
though it also has been held that the measure of damages for injury
to irrigation is the value of the producible crop, less the expense
of producing it,^* and that the size and market value of c^ops on
neighboring land is admissible evidence of the damage to crops by
flooding.*^

The measure of damages for permanent injury to land resulting
from pollution of a stream by mining is the difference between the
value of the land prior to the injury and after the injury. Where
several years elapse before the injury is complete, the landowners
are entitled to damages for the yearly injury to their crops caused
by the continuing nuisance.^^

213 Morris v. Bean (Mont.), 146
Fed. 433.

214 Rickey V. Wood (C. C. A.), 152
Fed. 22; Ames etc. Co. v. Big Indian
etc. Co., 146 Fed. 66.

216 Van Bibber v. Hilton, 84 Cal.
585, 24 Pac 308, 598.

216 McDonald v. Bear River Co., 15
Cal. 145.

217 Parks etc. Co. v. Hoyt, 57 Cal.
44.

218 Burrows v. Fox (Cal.), 30 Pac.
768; Denver etc. Co. v. Dotson, 20
Colo. 304, 38 Pac. 322 (destruction of

ditch) ; Young v. Extension Ditch Co.,
13 Idaho, 174, 89 Pac. 296.

219 Parks etc. Co. v. Hoyt, 57 Cal.
44.

220 Reisert v. New York, 74 N. Y.
Supp. 673, 69 App. Div. (N. Y.) 302.

221 Candler v. Washoe Lake etc.
Ditch Co., 28 Nev. 151, 80 Pac. 751.

222 Dennis v. Crocker etc. Co. (Cal.
App.), 91 Pac. 425.

223 Watson V. Colusa, Parrot Min.
etc. Co., 31 Mont. 513, 79 Pac. 14,
measure of damages for pollution.

SS 214, 215

PROTECTION OF THE RIGHT.

329

§ 214. Decree. — Decrees should be as definite as language can
make them.^®* Decrees awarding a party ** enough to irrigate
his land," ^^ or **one good irrigation stream of water," ^28 j^^y^ been
held defective for uncertainty. A decree should specify second-
feet or definite fractions of a streato,^^ and not merely dimensions
of ditch.228 If a decree is based on capacity of ditch alone, it is
erroneous, as it should be further limited to beneficial use,^^ or a
limitation to beneficial use will be implied and read into the de-
cree.^^

A decree concerning a water right does not per se concern a ditch
and vice versa.^^

**The point is made that the decree should have permitted the
defendants to divert the water, on condition that they returned it to
the river above plaintiff's lands, no less diminished than it would
have been in its natural flow to the point of return. It may be that
a decree so limited would have been proper if the evidence had
shown that the defendants were able and willing to make such
return of the water. "^^

§ 216. Use of Phjnrical Force. — The remedy nearest at hand is,
usually, a show of physical force on the part of the owner ; and this
is quite proper, if not overdone. Reasonable physical force may al-
ways be used to put trespassers off one's property. In one caj^e ^"^
the court says this extends to a ^'molliter manus imposuit/' which,
translated from the Latin, may be taken, ** A gentle use of one's
fists." In the following case trespassers entered upon another's

224 Authors V. Bryant, 22 Nev. 242,
38 Pac. 439.

225 Walsh V. Wallace, 26 Nev. 29Q,
99 Am. St. Rep. 692, 67 Pac. 914.

226 Smith V. Phillips, 6 Utah, 376,
23 Pac. 932.

227 Nephi etc. Co. v. Vickers, 15
Utah, 374, 49 Pac, 301.

228 Lakeside etc. Co. v. Crane, 80
Cal. 181, 22 Pac. 76.

229 Gotelli v; Cardelli, 26 Nev. 382,
69 Pac. 8; Twaddle v. Winters
(Nev.), 85 Pac. 283.

230 Medano etc. Co. v, Adams, 29
Colo. 317, 68 Pac. 431. "Whenever
it is not needed by the plaintiffs, 't
shonld be. turned to the defendants,
if they have any beneficial use for
it, and not permitted to waste. It

may be implied by the law ; • but it is
better to have decrees specify, and
especially so in this case, in view of
the testimony stated and of the per-
petual injunction, that the award of

. water is limited to a beneficial use at
such times as it is needed. ' ' Twaddle
V. Winters (Nev.), 85 Pac. 280.
2S1 Parke v. Boulware, 7 Idaho, 490,

. 63 Pac. 1045; Nevada etc. Co. v.
Kidd, 37 Cal. 282.

232 Huffner v. Sawday (Cal. Sup.),
94 Pac. 424. Citing Gould v. Eaton,
117 Cal. 539, 49 Pac. 577, 38 L. R. A.
175; Montecito Valley Co. v. Santa
Barbara, 144 Cal. 578, 77 Pac. 1113.

233 Mechanics' Foundry v. Byall,
75 Cal. 601, 17 Pfic. 703. '

330 THE LAW OF APPROPRIATION. § 216

land to build a ditch and interfere with water rights and were
driven off; whereupon they brought suit. The court says: **One
of the grievances of which the plaintiffs complain is that they were
ejected from the possession of certain ground occupied by them
for the purpose of constructing a dam and ditch. The object was
to divert the water away from the defendants, and we think the
plaintiffs- have no right to complain of the means adopted to de-
feat this object. As against the defendants the diversion would
have been illegal and we regard their action in the premises as a
proper and legitimate mode of averting the injurious conse-
quences. "2**

One may go upon another's land to remove obstructions placed
there without being held liable in trespass,^^ or to clean out or
repair the ditch.^®® The subsequent appropriators may require the
prior one to keep up his dam, or may themselves maintain the dam
as they found it at the time of their location .^^ The landowner
may take away and remove material brought on his land by a ditch
owner to erect a saloon beside the ditch.^^

In a recent case^^ it is said: **It is clear from these au-
thorities that one who is in possession of real property without
right cannot maintain an action of trespass on his person — assault
and battery — against the owner of the property, having a right to
its possession, or against those, acting at his instance or in his be-
half, who make a forcible entiy thereon to dispossess him, where no
more force than is necessary is used to make the entry effective."
Adding that if the trespasser is armed, it may (a question of faet)
be reasonable for the owner to enter armed to dispossess him.

§ 216. Orimas. — ^Under the Penal Code of California, there are
the following crimes peculiar to this subject: Under section 347.
poisoning water in any spring, well, or reservoir, is a State's prison
offense, and under section 374, fouling the water by putting offal
or filth into any stream, pond, lake or reservoir, is a misde-
meanor.***^ An example of this is herding a band of sheep daily

284 Butte etc. Co. v. Morgan, 19 Cdl. ^ Lobdell v. Simpson, 3 Nev. 274,
609, at 616. See, atoo, McOarty v. ^^ ^°*- ^^- ^^7'
Fremont, 23 Gal, 196. ^ Whitmoje v. Pleaaant Valley

etc. Co., Z7 Utah, 284, 75 Pac. 748.

a^Bnnor v. Baine, 27 Nev. 178, ^ ^^^^^ ^ Chanalor, C»l. Sup.,

/4 r^c. 1. Feb. 27 1908.

ZM.Careon v. Centner, 33 Or. 512, 240 See, also, Cal. Stats. 1907, c.

52 Pac. 506, 43 L. R. A. 130. 492.

§ 216 PROTECTION OF THE RIGHT. 331

to a stream which they defile.^^ Under section 499, stealing water
from flumes, pipes, etc., is a misdemeanor. Under sections 592 and
607, destroying or injuring flumes, reservoirs, etc., is a misde-
meanor. Maintaining appliances injurious to fish is a misde-
meanor,*^ In Washington it ia a crime to cause any aperture in a
structure erected to conduct waters for agricultural purposes.*^

These crimes do not exclude the equitable jurisdiction to restrain
the same acts as nuisances in a civil suit.*^

Under the recent Irrigation Codes of the arid States there are
many criminal provisions in the nature of police reg^ilations ; such
as waste of water, interference with headgates or measuring de-
vices, or obstruction of ofScials in their work.***^

241 People V. Borda, 105 Gal. 636, 116 Cal. 397, 58 Am. St. Bep. 183,
38 Pac. 1110. 48 Pac. 374, 39 L. R. A. 581; Spring

242 Pen. Code, 629. Valley etc. Works v. Fifield, 136 Cal.

243 State V. Tiffany (Wash,),- 87 14, 68 Pac. 108.

Pac. 932. 245 See infra, sec. 388, and stat-

244 People V. Truckee Lumber Co., utes in Part VI.

332 THE LAW OP APPROPRIATION. § 217

CHAPTER XIII.

ALIENATION AND DISPOSAL OP RIGHT— CONTRACTS-
CONVEYANCES.

A. CONTRACTS.
§ -217. Power to contract.
§ 218. Contracts (continued^.
§ 219. Contracts (continued).
§ 220. Assignment.

B. CONVEYANCES.
§ 221. Conveyances.
§ 222. Formalities on transfer.
§ 223. Operation of /conveyance.
§ 224. Sale in parts.

C. APPURTENANCE.
§ 225. Appurtenance.
§ 226. Appurtenance (continued).
8. 227. Appurtenance (continued).

D. PAROL SALE.
§ 228. Parol sale.

A. CONTRACTS.

•

§ 217. Power to Contract. — A reference to the cases at large
will disclose contracts of all kinds made by the appropriators
whereby the water is apportioned between them, sold or dealt with
like other property. The court in an early case ^ says: **It can be
transferred like other property."^

One case may be stated to show the great Ttreedom in this respect.^
A homestead claimant had sold a water right of appropriation and a
ditch appurtenant to the land, before final proceedings. The
United States statutes prohibit a homestead claimant from disposing
of his land before he acquires full title. This was held not to inter-
fere with the sale of the ditch and water right acquired by appro-
priation. A similar question arose in another case.^ It was held

lOrtman V.Dixon, 13 Cal. 33. 3^ Camiel etc Co v Webster

2 See People's Ditch Co. v. Fresno ,,^ ^l\ no? i, S" ooJ* ^^^^^'

Canal Co. (Cal. Sup., Sept. 26, 1907), ^^'^ ^'^^' ^^"^^ '^ ^*^- *'^®-

92 Pac. 77; Fresno Canal Co. v. ■* Lobdell v. Hall, 3 Nev. 507.

Parke, 129 Cal. 437, 62 Pac. 87.

§ 218

CONTRACTS— CONVEYANCES

333

that an Indian may mak6 an appropriation. The United States
statutes, however, forbid the sale of lands by Indians. The court
seems to have thought that the sale of a water right was not within
this prohibition.

A parol contract to furnish water ^'at all times'' is void under
the statute of frauds as a contract not to be performed within a
year.*^ A parol license to take water from a canal is revocable at
wiU.«

Contracts with canal or irrigation companies (public service
companies) for supply are separately considered in a later chap-
ter.7

§ 218. Contracts (Continued). — Appropriators may settle their
rights by contract,^ but agreements must be in writing; within the
statute of frauds,^ unless the parol agreement has been executed
or there has been part performance such as will take the case out of
the statute in equity. ^^ A parol license unexecuted is revocable,
and is revoked by death.^^

A contract being to supply water from a specific canal, failure
of the supply in the canal from iiatural causes relieves the canal
owner from liability for the failure to supply the water,'^ but it
would be otherwise where the contract referred to no specific
canal.^*

A contract for conveyance of a **good and sufficient water right"
is fulfilled by tender of certificates in an irrigation company."

Contracts may be made for ** developing" underground water.^^

One who buys a right to a specific; quantity of water has, against
his grantor, unlimited right of disposal thereof, and may resell it
to others in whole or part.^® An agreement whereby one acquires
from another the right to a specific quantity of watfer in general

. 6 Metropolitan etc. Co. v. Topeka
etc. Co. (Kan.), 132 Fed. 702.

B Latham v. Wenatchee etc. Co.
(Wash.), 93 Pac. 522.

T. Infra f sec. 409 et seq.

^ Biggs V. Utah etc. Co., 7 Ariz.
331, 64 Pac. 494.

» Bree v. Wheeler, 4 Cal. App. 107,
87 Pac. 255; Schilling v. Bominger,
4 Colo. 100.

10 Supra, sec. 207.

11 Jensen v. Hunter (Cal.), 41 Pac.
17.

12 Fresno Milling Co. v. Fresno
Canal etc. Co., 126 Cal. 640, 59 Pac.
140.

IS Cf. Wilson V. Alcatraz Co., 142
Cal. 188, 75 Pac. 787 (oil).

1* Fairbanks v. Bollins (Cal.), 54
Pac. 79.

15 Painter v. Pasadena Co., 91 Cal.
74, 27 Pac. 539; Boberts v. Krafts,
141 Cal. 20.

16 Calkins v. Sorosis etc. Co., 150
Cal. 426, 88 Pac. 1096.

334 THE LAW OF APPROPRIATION. 8 219

terms passes a right as between the parties wiUiout regard to the use
made of the water. The covenantor cannot follow the water after
its delivery to the covenantee, who consequently may, when not
needing all himself, license use of the surplus to his neighbour for a
rental.^^ In the case Just cited it is said: "As he had purchased
the right to the use of all the waters conveyed from the irrigation
ditch, he was entitled to an unrestricted control over that use. He
was not limited by any contract with defendant upon the subject.
He is not taking any more water than he purchased, and is not
using himself or licensing to his neighbors more than he bought.
Having purchased the use of a given quantity if he cannot Use
it all himself, we see no reason why he cannot sell the right to a
temporary use of it to his neighbors, as wanted, for a beneficial
purpose. To hold that he cannot do so would be to impose a re-
striction for which iio warrant is found in the agreement of pur-
chase, and would be in effect to deprive him of a valuable incident
to the ownership of this character of property, the right to dispose
of its use to others when it is not required for use by the owner
himself. There is no laW which will impose the limitation con-
tended for by appellant. * '

§ 219. Contraota (Oontinved). — ^In Colorado there has been
a plan of organizing companies by selling consumers' rights to the
extent of the "estimated capacity" of the canal, which has been
construed to mean a computation based on actual carrying power,
together with the extent of priorities actually possessed by the or-
ganizers, without resorting to pro-rating or rotation^^^ and the con-
sumers are entitled by the contract to a oonv^ance of tiie canal
when the estimated capacity has been fully sold.^^

Colorado permits contracts for the "loan" of water^ an anomalous
procedure, authorized by statute,^ but not favored by the court.
The statute provides that the owners of irrigation ditches and water

17 CaUdns v. Soroeifl Fruit Co., 150 Broadmoor etc. Co. v. Brookaide etc.

Cal. 426, 88 Pae. 1094. Bee, also, Co., 24 Colo. 541, 52 Pae. 79^.

infra, see. 419 et seq. Contracts with i9 La Junta Co. v. Hess, 6 Ook>.

irrigation companies, in a later chap- App. 497, 42 Pae. 50.

ter. ^ 3 Mills' Ann. Stats.^ 2d ed., sees.

IB Wyatt y. Larimer Co., 18 Colo. 2271a-2271e; Mills' Ann. Stats. lieY.
298, 36 Am. St. Bep. 280, 33 Pae. Supp., sec. 2273c; Ft. loron Co. v.
144; Blakeley v. Ft. Lyon Co., 31 Chew, 33 Colo. 392, 81 Pae. 37; Bow-
Colo. 224, 73 Pae. 249; Water Sup- man v. Virdin (Colo.), 90 Pae. 506.
plj Co. V. Larimer etc. Co., 24 Colo. But see Slosser v. Salt Biver Co., 7
322, 51 Pae. 496, 46 L. R. A. 322; Ariz. 376, 65 Pae. 332.

§ 220

CONTBACT&— CONVEYANCES.

335

rights taking water from the same stream may exchange with and
loan to each other, for a limited time, water to which each may
be entitled, for the purpose of saving crops or of using the water in
a more economical manper. This is held only to permit an exchange
or loan of water under circumstances not injuriously affecting the
vested rights of other appropriatoins, and the beneficiary of the
loan must affirmatively plead and prove that the water so loaned
could be and was used without injuiy to other appropriators, in-
cluding those subsequent in priority to the lenders. So cokistrued.
the statute has been held constitutional.^^

§ 220. AssigiUient; — Covenants concerning water rights may
run with the land.^ A personal covenant or agreement on the
part of a water company to supply water wnll be binding upon a
new water company purchasing the lands and plant of the old com-
pany with notice. The agreement is binding in equity not only in
favor of the original covenantee, but in favor of a grantee from
him.®

Under the California Civil Code, a contract may create a lien
for rates and rentals on the land supplied with water^ which will
bind the land whether the water is actually used or not,^ and even
in the hands of a purchaser of the land, though not technically a
covenant running with the land,^ provided the pu^rchaser has notice
of the lien.^ The remedy of the party furnishing the water in
such ease is by forecloisure of the lien, not by personal action
against the assignee.^ But the California coufts have been tech-
nical in construing a contract attempting to create such a lien, and

21 Bowman v. Virdin (Colo.), 90
Pac. 506.

^ Hottell ▼. f\irmer8' etc. AMn.,
25 Colo. 67, 71 Am. St. Eep. 109, 53
Pac. 327.

23 Hunt V. Jones, 149 CaL 297, 86
Pac. 686. Quaere, whether the rule
of equitjr here invoked is not confinod
to '* negative easements,*' or to such
afiirmative covenants only of which
eqoity would order specific perform-
ance, in which contracts for continual
service are not usually included. Con-
tracts with Distributing Companies,
see infra, sec. 419 et seq.

24 Fresno etc. Co. v. Bowell, 80 Cal.
116, 13 Am. St. Bep. 112, 22 Pac.

53; Same v. Hart, Cal. Sup., Dec. 3,
1907.

26 Fresno Bate Gases; Fresno CaBal*
etc. Co. V. Bowell, 80 Cal. 114, 13
Am. St. Bep. 112, 22 Pac. 5d ; ^esno
Canal etc. Co. v. Dunbar, 80 Cal. 530,
22 Pac. 275; Balfour v. Fresno Irr.
Co., 109 Cal. 221, 41 Pac. 876; Fresno
Canal etc. Co. v. Park, 129 Gal. 435,
62 Pac. 87. But that is owing to no
peculiarity of the law of appropria-
tion ; it applies to other contiuctt also.
See Cal. Civ. Code, sec. 1468.

26 Ibid., Bowell case.

27 Fresno etc. Co. v. Dunbar, 80
Cal. 530, 22 Pac. 275.

336 THE LAW OF APPEOPEIATION. S 220

held^ that a contract worded *'to have the force and effect of a
covenant running with the land'' did not create such a lien. On
rehearing in supreme court, this was afSrmed, though it was instead
held the contract n/svertheless bound the property as an interest
in real estate.^^ A typical California water right contract between'
a company and a consumer was before the California court in the
last case, where it was held that, though not creating a contract
lien as above, it nevertheless granted an interest in the company's
canal and water rights, so as to bind the same in the hands of an as-
signee of the water company. The matter is further discussed in
a subsequent chapter.*^

Where a water company is (as frequently. happens) under mort-
gage, which is afterward foreclosed, the purchaser at the fore-
closure sale will usually contend that he is not bound by water right
contracts made subsequent to the mortgage; but were this true,
contracts for water supply would be of little security to the con-
sumer, and the courts hold the purchaser bound by them. The
best reasoned case is Sammons v. Kearney Power & Irr. Co.,^^
holding that a company subject to such a mortgage has implied au-
thority from the mortgagee to continue as a going concern, and to
do all reasonably necessary to that end, including the making of
binding contracts with consumers, which thereby are made para-
mount to the mortgage and do not drop on its foreclosure.^ And
where the foreclosure purchaser retains the benefit of the contract
and holds possession of the consideration given the mortgagor com-
pany, and continues to furnish water, he will be held to have as-
sumed the burden of the contract also, and be bound to furnish
water as for an afSrmance, adoption or novation of the contract.*^

Contracts of promoters to supply water at fixed rates have been
held binding on the after-formed company which assumed the
benefits of the contract.**

28 Stanislaus Water Co. v. Bach- 33 Clyne v. Benicia Water Co., 100
man, CaL App., Mch. 30, 1906. CaL 310, 34 Pac. 714. See Stanislaus

29 Same v. Same (Cal. Sup., Jan. Water Co. v. Baehman (Cal. Sup.,
23, 1908), 93 Pae. 858. . Jan. 3, 1908), 93 Pac. 858.

30 Infray sec. 422. 34 Bobbins v. Bangor etc. Co., 100

31 (Neb.), 100 N. W. 308. Me. 496, 62 Atl. 136, 1 L. R. A., N.

32 See, also, Stanislaus Water Co. S., 963.
V. Baehman (Cal. Sup., January 23,

1908), 93 Pac. 858.

§§ 221, 222

CONTRACTS— CONVEYANCES.

337

B. CONVEYANCES.

§ 221. Conveyances. — ^Possessory rights on the public domain
were always recognized as transferable. It is consequently said^
that a water right can be transferred like other property. The only
exception is the case of parol sale.** By a written conveyance
priority is preserved.'^

§ 222. Formalities on Transfer. — The conveyance must be in
writing, as an interest in real estate within the statute of frauds.^
In California, the distinction between sealed and unsealed instru-
ments has been abolished.^ As to necessity of a seal, where the dis-
tinction still prevails, see cases in note.*^

The sale must be recorded, as it is within the recording statutes.**
But recording is not necessary inter partes.^ The water right
may be sold on execution as an interest in realty.*^ The statute
of limitations concerning realty applies to water rights.** The wa-
ter right may be sold in parts,**^ the purchasers becoming tenants in
common.*** The sale is complete on delivery of a deed and posses-
sion.*'' The grantee cannot sue for a diversion antedating the sale.*®

35 Ortman v. Dixon, 13 Cal. 33.
Like realty. Barkley v. Tieleke, 2
Mont. 59.

38 Supra, sec. 228.

37 Smith V. O'Hara, 43 Cal. 371;
Kinnej on Irrigation, sec. 254; Jacob
V. Lorenz, 98 Cal. 332, 33 Pae. 119.

38 Child V. Whitman, 7 Colo. App.
117, 42 Pac. 601; Bumham v. Free-
man, 11 Colo. 601, 19 Pac. 761 ; Ada
etc. Co. V. Farmers' etc. Co., 5 Idaho,
793, 51 Pac. 990; Middle Creek Co. r.
Henry, 15 Mont. 558, 39 Pac. 1054;
Smith V. O'Hara, 43 Cfel. 371; O'Neto
V. Restano, 78 Cal. 374, 20 Pac. 743;
Dorris v. Sullivan, 90 Cal. 279, 27
Pac. 216; Hayes v. Fine, 91 Cal. 391,.
27 Pac. 772; Grisezs v. Terwilliger,
144 Cal. 456, 77 Pac. 1034.

a> Civ. Code, see. 1629.

40 Ortman v. Bizon, 13 Cal. 33;
Barkley v. Tieleke, 2 Mont. 59; Mat-
tis V. Hosmer, 37 Or. 523, 62 Pac.
17, 632.

41 Partridge v. McKinney, 10 Cal.
181; Lyles v. Perrin, 119 Cal. 264, 51

Water Rlshti— 2a

Pac. 332. See Stanislaus ^. Co. v.
Bachman, Cal. Sup., Jan. 23, 1908,
holding "Miscellaneous'' the proper
book for the instrument in that case.
Utah Laws 1905, c. lOS, sees. 62, 63,
and the irrigation codes generally.

42 Whalen v. North Platte etc. Co.,
11 Wyo. 313, 71 Pac. 995; Middle
Creek etc. Co. v. Henry, 15 Mont. 558,
39 Pac. 1054.

48 Gleason v. Hill, 65 Cal. 17, 2
Pac. 413.

44 Yankee Jim etc. v. Crary, 25 Cal.
504, 85 Am. Dee. 145; infra, sec. 240
et seq., adverse possession.

46 McDonald v. Askew, 29 Cal. 200;
Larrimer etc. Co. v. Cache La Poudre
etc. Co., 8 Colo. App. 237, 45 Pac.
525; infra, see. 224.

46 Bose V. Mesmer, 142 Cal. 322, 75
Pac. 905.

47 Booth V. Chapman, 59 Cal. 149.

48 Kimball v. Gearhart, 12 Cal. 27 ;
Bianda v. Watsonville etc. Co. (Cal.
Sup., Dec. 9, 1907), 93 Pac. 79.

338

THE LAW OP APPROPRIATION.

8 223

The right may be sold separate from the land, since it is independent
of title to or possession of any land,^ as has been more fully dis-
cussed elsewhere.^

§ 223. Operation of Conveyance. — A conveyance of land is
subject to apparent water right or ditch easements,^^ or those
of which the grantee has notice,^^ but not to non-apparent ones of
which the grantee has no notice,^ in which last case it was held
that even in Colorado one cannot enter upon another's land to build
an irrigation ditch which was not there when he acquired the land,
contrary to the rule at first assorted in Colorado ^ that all land was
held subject to entry by irrigators to build ditches across it.

A sale before completion of the appropriation gives the grantee a
right to complete it where diligence has been used in the construc-
tion work, preserving priority,^ but where a right has been lost
by lack of diligence in construction work,*^ or by non-user and
abandonment,^^ there is nothing to sell, and a conveyance passes
nothing. The grantor of a water right which he does not own at
the time is estopped by his deed from claiming it if afterward ac-
quired by him.®

Sales may be made of permits from the State Engineer to make
appropriations, and the purchaser of the permit will stand in the
shoes of •his vendor." The water right and ditch right may be sold
separately, and the conveyance of one does not necessarily include
the other.^ .Water rights may be mortgaged.^^

49 Under irrigation codes, approval
of the State Engineer is neceesarj.

50 Infra, sec. 186.

51 Baldoek v. Atwood, 21 Or. 73,
26 Pac. 1056.

52 Freano Canal Go. v. Bowell, 80
Cal. 114, 13 Am. St. Eep. 112, 22 Pac.
53.

53 Blake v. Boye (Colo.), 88 Pac.
470.

54 Yunker v. Nichols, 1 CJolo. 551.

55 Nevada etc. Co. v. Bennett, 30
Or. 59, 60 Am. St. Eep. 777, 45 Pac.
472.

50 Colorado etc. Co. v. Rocky Pord
etc. Co., 8 Colo. App. 545, 34 Pac.
580.

5T Davis V. Gale, 32 Cal. 26, 9 Am.
Dec. 554; Kirman v. Hunnewill, 93
Cal. 519, 29 Pac 124.

58 IHctum^ Bianda v. Watsonville
W. Co. (C!al. Sup., Dec. 9, 1907), 93
Pac. 79.

5» Whalon v. North Platte etc. Co.,
11 Wyo. 313, 71 Pac. 995.

eo Wold V. May, 10 Wash. 157, 38
Pac. 875 J Ada etc. Co. v. Farmers'
etc. Co., 5 Idaho, 793, 51 Pac. 990,
40 L. B. A. 485; Rogers v. Riverside
etc. Co., 132 Cal. 9, 64 Pac. 95.

61 Farm Inv. Co. v. Alta etc. Co.,
28 Colo. 408, 65 Pac. 22 ; Mitchell
V. Canal Co., 75 Cal. 464, 17 Pac.
246, both considering a question of
after-squired property. As to which
see, also, Stanislaus Water Co.* v.
Bachman, Cal. Sup., Jan. 23, 1908,
and Bear Lake Co. v. Garland, -164
U. S. 1, 41 L. ed. 327, 17 Sup. Ct.
Rep. 7.

5 224

COXTBACTS—CONVEYANCES

339

A sale does not sell the water itself or mean the delivery of any
specific quantity of water; it merely passes the right to use it.®^
The water right may pass by descent.*^ Concerning sales of water
rights by a distributing company, see a later chapter.**

§ 224. Sale in Parts. — ^An appropriation may be sold in parts
and a sale of a part is not per se void as an abandonment of that
part.^ A sale of a part which, previous to the sale, has in fact
been abandoned for pon-use, vrill pass nothing.** Consequently
a sale of the surplus one does not need will pass* nothing, where
the facts show that such lack of need preceded the sale so as to
show that the seller at the time of sale had no right to such sur-
plus.*^^ In the last case the court seems to lay down the rule
that a sale describing the amount sold as a surplus is per se void
as an abandonment, which would be a return to the principle of the
old rule concerning parol sales. ,The decision was really a com-
promise with the contention that the right of use should be in-
separable from the land on which first used. If one may sell the
whole of an appropriation, he should be able to sell a part of it,
where change of plans enable him to do so, and the Johnston case
seems the only one to the contrary, where the part had not been
previously abandoned or forfeited by non-use.

A sale of a part which would injure subsequent appropriators
by the new use made of it is invalid against them.^ But a sale
of part is valid between the parties to the sale in any event.*^

62 Booth V. Chapman, 59 Cal. 194 ;
Johnston v. Little Horse etc. Co., 13
Wyo. 208, 110 Am. St. Bep. 986, 79
Pae. 26, 70 L. B. A. 341.

63 Hall V. Blackman, 8 Idaho, 272,
68 Pac. 19.

M See. 409 et seq.

65 Drake v. Earhart, 2 Waho, 716,
23 Pac. 541; Strickler v. Colorado
Springe, 16 C61o. 61, 25 Am. St. ]^ep.
245, 26 Pac. 313; Ft. Morgan Co. v.
So. Platte D. Co., 18 Colo. 1, 36 Am.
St. Bep. 259, 30 Pac. 1032; Middle
Cr. Co. V. Henry, 15 Mont. 558,
39 Pac. 1054; Prank v. Hicks, 4
Wyo. 502, 35 Pac. 475, 1024; Mill-

heiser v. Long, 10 N. Mex. 99, 61
Pac. Ill; Hall v. Blackman, 8 Idaho,
272, 68 Pac. 19; Calkins v. Sorosis
etc. Co., 150 Cal. 426, 88 Pac. 1094.

60 Davis V. Gale, 32 Cal. 26, 91 Am.
Dec. 554; Kirman v. Hunnewill, 93
Cal. 519, 29 Pac. 124; Manning v.
Fife, 17 Utah, 232, 54 Pac. 111.

6T Johnston v. Little Horse etc. Co.,
13 Wyo. 208, 110 Am. St. Bep. 986,
79 Pac. 22; 70 L. B. A. 34.

68 Creek v. Bozeman etc. Co., 15
Mont. 121, 38 Pac. 459.

«» Calkins v. Sorosis Fruit Co., 150
Cal. 426, 88 Pac. 1094.

340

THE LAW OF APPROPRIATION.

8§ 225, 226

C. APPURTENANCE.

§ 225. Appurtenance. — It is well settled that a water right
may pass with land as an appurtenance thereto, or as a parcel
thereof.'^®

Whether a water right passes as an appurtenance involves two
questions, viz. : (a) Whether the water right is an appurtenance,
and (6) Whether, being such, it was intended to pass. Both of
these are questions of fact in each case.

§ 226. Appurtenance (Continued). — The first question, whether
the water right is an appurtenance, depends on whether it is an
incident, necessary to the enjojmaent of the land. The water
right is not necessarily appurtenant to or parcel of any land; and
w^hether it is an appurtenance or parcel is a question of fact rest-
ing chiefly upon whether it was used specially for the benefit of the
land in question.''^ When used- for irrigation, there will seldom
be doubt of such necessity.'^^ A water right or ditch right is

70 Quirk V. Falk, 47 Cal. 453; Rey-
nolds V. Hosmer, 51 Gal. 205; Hun-
garian etc. Co. V. Moses, 58 Cal. 168;
Lower Kings Biver etc. Co. v. Kings
etc., 60 Cal. 408; Fitzell v. Leaky, 72
Cal. 477, 14 Pac. 198; Standart etc.
Co. V. Round Valley etc. Co., 77 Cal.
399, 19 Pac. 689; Mitchell v. Amador
Canal etc. Co., 75 Cal. 464, 17 Pac.
246; Conradt v. Hill, 79 Cal. 587, 21
Pac. 1099; McShane v.. Carter, 80 Cal.
310, 22 Pac. 178; Crooker v. Benton,
93 Cal. 365, 28 Pac. 953; Clyne v.
Benicia etc. Co., 100 Cal. 310, 34 Pac.
714; Dixon v. Schermeier, 110 Cal.
582, 42 Pac. 1091; Smith v. Corbit,
116 Cal. 587, 48 Pac. 725; Williams
V. Barter, 121 Cal. 47, 53 Pac. 405;
Pendola v. Ramm, 138 Cal. 517, 71
Pac. 624 ; Senior v. Anderson, 138 Cal.
716, 72 Pac. 349; Pogue v. Collins,
46 Cal. 435, 80 Pac. 623; Nevada
etc. Co. V. Bennett, 30 Or. 59, 60 Am.
St. Rep. 777, 45 Pac. 472; Amett v.
Linhart, 21 Colo. 188, 40 Pad 355;
Gelwicks v. Todd, 24 Colo. 494, 52
Pac. 788; North American Explora-
tion Co. V. Adams, 104 Fed. 404. See
cases collected infra; also see Con-
sumers, sees. 422-425, infra; 65
fj. R. A. 407, note, and 17 Ency. of
Law, 515; Utah Laws 1905, c. lOS,

sec. 617; Idaho Stats. 1903, p. 223,
sec. 9, as amended 1905, p. 174, seQ.
38; Oklahoma Stats. 1905, p. 274,
sees. 21, 30; South Dakota Stats. 1905,
p. 201, sees. 31, 47, and irrigation
codes generally. Cf, Cal. Civ. Code,
sec. 662.

T0» Quirk V. Falk, 47 Cal, 453;-
Mitchell V. Amador Canal etc. Co., 75
Gal. 464, 17 Pac. 246; Payne v. Cum-
mings, 146 Cal. 426, 106 Am. St. Bep.
47, 80 Pac. 620.

71 Water right held appurtenant on
the facts: Mattis v. Hosmer, 37 Or.
523, 62 Pac. 17, 632; Murray v.
Briggs, 29 Wash. 245, 69 Pac. 765;
Rickey etc. Co. v. Miller (Nov.), 152
Fed. 14; Pendola v. Ramm, 138 OaL
517, 71 Pac. 624.

Water right held not appurtenant
on facts: Ginocchio v. Amador etc.
Co., 67 Cal. 493, 8 Pac. 29; Strickler
V. Colorado Springs, 16 Colo. 61, 25
Am. St. Rep. 245, 26 Pac. 313 ; Bloom
v. West, 3 Colo. App. 212, 32 Pac.
846; Crawford v. Minnesota etc. Co.,
15 Mont. 153, 38 Pac. 713; Dodge
V. Marden, 7 Or. 457. The cases to
this effect are more fully cited else-
where herein, in considering sale
separate from land on change of
place of use, supra, sees. 63, 186.

§ 226

CONTRACTS— CONVEYANCES

341

appurtenant only to such lands of a large tract as had been
actually irrigated from itJ^

The second question whethei:, being appurtenant, it passes on the
sale when the deed does not use the word ** appurtenances/' is a
question of the intention of the parties. A thing appurtenant to
land may well be separated therefrom, and the lan(} may be sold
either with or without the appurtenant- water right.*"^ The word
** appurtenance'/, does not mean ** inseparable."^* It depends
on what the facts show that the parties to the sale meant to do. It
is a question of intention, to be drawn from the deed; or, if the
deed is silent, to be drawn from the surrounding circumstances,
the acts of the parties, and parol evidence generally.™

The party asserting that it was so intended to pass has the
burden of proof,''® but a showing that the water right was appurte-
nant and necessary to the beneficial enjoyment of the land has
usually been held sufficient proof of intention to pass it, in the ab-
sence of express reservation in the deed, or other evidence to the
contrary. Such proof raises a presumption of intention to include
the water right in the sale. ''Although a water right may be ap-
purtenant to the land, it is the subject of property, and may be
transferred either with or without the land. Being, therefore, a dis-
tinct subject of grant, and transferable either with or without the

T2 Anaheim W. Co. v. Ashcroft, CaL
Sup., Feb. 29, 1908.

73 Cooper V. Shannon, 36 Colo« 98,
85 Pac. 177.

74 Calkins v. Sorosis etc. Co., 150
Cal. 426, 88 Pae. 1094.

75 That passing as appurtenance is
a question of intention: Geddis v.
Parrish, 1 Wash. St. 587, 21 Pac. 314;
Simmons v. Winters, 21 Or. 35, 28
Am. St. Bep. 727, 27 Pac. 7 ; Child v.
Whitman, 7 uolo. App. 117, 42 Pac.
601; Farmer v. Ukiah Water Co., 56
C^I. 11; Cross v. Kitts, 69 Cal. 217,
58 Am. Bep. 558, 10 Pac. 409; Bank
of British N. A, v. MiUer (C. C),
6 Fed. 545, 7 Saw. 163 (saying if in
gross, passes as parcel, not as appur-
tenance) ; Farm Inv. Co. v. GhiUup,
13 Wyo. 20, 76 Pac. 917 (saying it is
a question of fact) ; Clyne v. ^nicia
Water Co., 100 Cal. 310, 34 Pac. 714;
Tucker ▼. Jones, 8 Mont. 225, 19 Pac.
571; Sweetland v. Olsen, 11 Mont. 27,
27 Pac. 393; Jones v. Deardorff, 4

Cal. App. 18, 87 Pac. 213; Chamber-
lain V. Anter,- 1 Colo. App. 13, 27 Pac.
87; King t. Ackroyd, 28 Colo. 488,
66 Pac. 906; Crippen v. Comstock, 17
Colo. App. 89, 66 Pac. 1074; Besse-
mer etc. Co. V. Wooley, 32 Colo. 437,
105 Am. St. Bep. 91, 76 Pac. 1054
(saying that the passing as appurte-
nance is a question of fact depending
upon the intention of the grantor, as
expressed in the deed or as drawn
from the surrounding circumstances,
or whether incidental and necessary to
the land) ; Hayes t. Buzard, 31 Mont.
74, 77 Pae. 426 (saying the question
is ''what rights does the plaintiff ap-
pear to have acquired in the water
under that deed, in the light of the
facts as they then existed, and the
behavior of the parties with reference
to it down to the commencement of
the action").

70 Smith v. Denniff, 24 Mont. 20, 81
Am. St. Bep. 408, 60 Pae. 398, 50 L.
B. A. 741.

342

THE LAW OP APPROPRIATIOX.

S 226

land, whether a deed to land conveys the water right depends upon
the intention of the grantor, which is to be gathered from the ex-
press terms of the deed ; or, when it is silent as to the water right,
from the presumption that arises from the circumstances, and
whether such right is or is not incident to and necessary to the bene-
ficial enjoyment of the land. * ' ""

That, if appurtenant, a water right passes with the land on a
sale though not mentioned in the deed, nor the word *'appurte<
nance" used, in the absence of evidence of an intent to the con-
trary, is well settled.''®

77 Cooper V. Shannon, 36 Colo. 98,
85 Pac. 177, citing Strickler v. City jf
Colorado Springs, 16 Colo. 61, 25 Am.
St. Rep. 245, 26 Pac. 313; Arnett v.
Linhart, 21 Colo. 188, 40 Pac. 355;
BesBemer etc. Ry. Co. t. T^ooley, 32
Colo. 437. 105 Am. St. Rep. 91, 76
Pac. 1053.

"tS Federal Courts. — North America
etc. Co. V. Adams, 104 Fed. 440, 45 C.
C. A. 185 (appurtenant to millsite) ;
Wilson V. Higbee (0. C), 62 Fed.
723 ; Bank of British N. A. y. Miller
(Or.), 6 Fed. 545, 7 Saw. 163; Rickey
V. Miller, 152 Fed. 14.

AUuka, — W^ot pass as appurtenance
without special mention or agreement
to that effect. Noland v. Coon, 1
Alaska, 36. Bnt from what follows
in the opinion, it appears that what is
meant is only that it will not pass
without mention, in the absence of
proof first that it was in fact appur-
tenant.

CaUfomia. — Cases cited tupra.
Also CiT. Code, sees. 1084, 1104;
StanislauB W. Co. t. Bachman (Cal.
Sup., Jan. '23, 1908), 98 PHtc. 858;
Cave T. Crafts, ^3 Cal. 135 ; ^rmer v.
Ukiah Water Co., 56 Cal. 11; Cross v.
Kitts, 69 Cal. 221, 58 Am. St. Rep.
558, 10 Pac. 409; Clyne y. Benicia
Water Co., 100 Cal. 310, 34 Pac. 714;
Jones V. Beardorff, 4 Cal. App. 18, 87
Pac. 213; McShane v. Carter, 80 Cal.
310, 22 Pac. 178; Smith ▼. Corbit, 116
Cal. 587, 48 Pac; 725. See Rianda
V. WatsonviUe etc. Co. (Cal. Sup.,
Hec. 9, 1907), 93 Pac. 79.

CoU)ra3o, — Cooper v. Shannon, 36
Colo. 98, 85 Pac. 177; Strickler v.
fjity of Colorado Springs, 16 Cdlo. 61,

25 Am. St. Rep. 245, 26 Pac. 313;
Arnett t. Linhart, 21 Colo. 188, 40
Pac. 355 ; Bessemer etc. Co. ▼. Wooley,
32 Colo. 437, 105 Am. St. Rep. 91, 76
Pac. 1053. An impression formerly
prerailed at the bar to the eontraxy.

Montana,— ^mith ▼. Denniff, 24
Mont. 20, 81 Am. St. Rep. 408, 60
Plac. 398, 50 L. R. A. 741; Tucker v.
Jones, 8 Mont. 225, 19 Pac. 571;
Sweetland v. Olsen, 11 Mont. 27, 27
Pac. 339; Ctawfdnl ▼. Minn. Co., 15
Mont. 153, 38 Pac 713; Bloan v.
Glancy. 19 Mont. 70, 47 Pac. 334;
Bnllerdick v. Hermsmeyer, 32 Mont.
541, 81 Pac. 334; Hays ▼. Buzard, 31
Mont. 74, 77 Pac. 426.

Nevada. — Miller v. Rickey (U. S.
C. C), 152 Fed. 14; Wilson ▼. Higbee
(Nev.), 62 Fed. 723.

Oregon. — Simmons v. Winters, 21
Or. 35, 28 Am. St. Rep. 727, 27 Pac.
7; Hindman v. Rizor, 21 Or. 112, 27
Pac. 13; Coventon v. Seufert, 23 Or.
548, 32 Pac. 508 ; Low v. Sehaffer, 24
Or. 239, 33 Pac. 678; Nevada Ditch
Co. V. Bennett, SO Or. 59, 60 Am. St.
Rep. 777, 45 Pac. 472; Turner v.
Cole, 81 Or. 154, 49 Pac. 971;
North Powder M. Co. v. Cough-
anour, 34 Or. 9, 54 Pac. 223;
Mattis V. Hosmer, 37 Or. 523, 62 Pac.
17; Oregon etc. Co. v. Allen etc. Co.,
41 Or. 209, 93 Am. St. Rep. 701, 69
Pfeic. 465.

Texas. — Toyaho Cr. Irr. Co. y,
Hutchins, 21 Ter. Civ. App. 274, 52
8. W. 101.

?7to?i.— Smith v. N. Canyon W. Co.,
16 Utah, 1^4, 52 Pac. 283; Snyder v.
Murdock, 20 Utah, 419, 59 Pac. 91;
George v. Robison et al., 23 Utah, 79,
63 Pac. 819.

f 227

C0NTBACT8— COirVEYANCES

343

''A deed of a milbite and mill upon which a right to divert water
from a stream and to use it to operate a mill, has been exercised
conveys the water right as an appurtenance to the mill, in the ab-
sence of any reservation of it, of any conveyance of it to another,
and of any other evidence that the grantor .did not intend to con-
vey it." "

This suggests the question, probably of little more than academic
importance, whether the water right is more properly spoken of as
an appnirtenance or as parcel of the land. In most of the cases it
is called an appurtenance. In some ^ it is spoken of as an incideiit
to or pareel of the land. In one,** the words ** appurtenance" and
"parcel" are used indiscriminately.^ It would seem that it is more
properly called an appurtenance. Originally the water right was,
as riparian right, parcel of the government land through which
the stream flowed. The very diversion which gave rise to the ap-
propriation severed it from the land of which it might otherwise
have been spoken as a parcel. That an appropriation may be an
appurtenance of land, whereas riparian rights are parcel thereof,
would seem to be another way of expressing a distinction between
riparian rights and appropriation.**

While not a strictly accurate way of expressing it, since it de-
pends on the facts of each case, yet the facts in irrigation are
usually such that it may be said that a deed of land per se passes
a water right used for its irrigation, unless expressly reserved.

§ 227. Appurtenance (Continued). — The water right will pass
as an appurtenance in parts on a sale of the land in parts.*^

Washington, — Geddis t. Parrisb, 1
Wash. St. 587, 21 Pac. 314; Briggs v.
Murray, 29 Wash. 245, 69 Pa«. 765.

Wyoming, — Frank ▼. Hieks, 4 Wyo.
502, 35 Pac. 475; Farm Inv. Co. v.
Gallup, 13 Wyo. 20, 76 Pac. 917;
Wiley V. Decker, 11 Wyo. 496, 100
Am. St. Rep. 939, 73 Pac. 210. See
Johnston t. Little Horse etc. Oo., 13
Wyo. 208, 108 Ata. St. Bep. 986, 79
Pac. 22, 70 L. R. A. 341.

79 North American etc. Go. v.
Adams, 104 Fed. 404, 45 C. G. A. 185.

80 McSbane v. Garter, 80 Gal. 310,
22 Pac. 178; Smith v. Gorbit, 116
Cal 587, 48 Pttc. 725; Williams v.
Harter, 121 Cal. 47, 53 Pac. 405.

81 Payne v. Cummings, 146 Gal.
426, 106 Am. St. Rep. 47, 80 Pac. 620.

n And sed Bank of British N. A.
V. MiUer (Or.), 6 Fed. 545.

83 Frank v. Hicks, 4 Wyo. 502, 35
Pac. 475, 481. See Kinney on Irriga-
tion, sec. 267.

84 Senior ▼. Anderson, 138 GaL 716,
72 Pac. 349; Bloom v. West, 8 Colo.
App. 212, 32 Pac. 846. Transfer of
water ri^ht by transfer of stock, see
Cache La t'oudre etc. Go. ▼. Larimer
etc. Co., 25 Colo. 144. 71 Am. St. Rep.
123, 53 Pac. 318.' See infra, Part V.

344

THE LAW OP APPROPBIATION.

§ 228

A water right, though acquired after a mortgage and becoming
appurtenant to the mortgaged land, will pass to the foreclosure
sale purchaser.®^

Water appropriated for use on certain lands by a trespasser on
the lands does not become appurtenant thereto, and a purchaser
of the land from the true owner gets no right to the water, but
the water right belongs to the trespasser for use on other land ; ^
and, on the other hand, water appurtenant to the land before the
trespass remains appurtenant thereto and is not severed therefrom
by the trespasser's use, the trespasser being lawfully evicted.^

The water right may be appurtenant* to a specific ditch or artifi-
cial watercourse through which the waters flow after diversion,**
or, vice versa, the ditch appurtenant to water right.®* A further
discussion of this point may be found under the matter of artificial
watercourses.*®

D. PABOL SALE.

§ 228. Parol Sale. — In the treatment of parol sale of water
rights, there is a peculiarity afforded by the law of 'appropriation.
If the grantee incurs considerable expense, and makes improvements
on the faith of the parol sale, the usual rule of specific performance
in equity, the part performance taking the case out of the statute of
frauds, applies.*^ But it is not necessary to invoke that doctrine.
That doctrine would give the grantee only the equitable title. A
parol sale of a water right, however, in spite of the statute of frauds,
may give a good legal title against all the world.

This arises out of the peculiar nature of possessory rights on the
public domain. In the early days the possessor disclaimed any right

86 Stanislaus Water Co. v. Baehman
(Cal. Sup.), 93 Pae. 858. Compare
as to after-acquired property, Mitchell
V. Canal Co., 75 CaL 464, 17 Pac.
246; Farm etc. Co. v. Alta etc. Co.,
28 Colo. 408, 65 Pac. 22; Bear Lake
Co. V. Garland, 164 U. S. 1, 41 L. ed.
327, 17 Sup. Ct. Bep. 7.

86 Smith V. Logan, 18 Nev. 149, 1
Pac. 678; Alta etc. Co. v. Hancock, 85
Cal. 228, 20 Am. St. Bep. 217, 24 Pac.
645; Seaward v. Pacific etc. Co. (Or.),
88 Pac. 963.

87 Alta etc, Co, v. Hancock, 85 Cal.
228, 20 Am. St. Bep. 217, 24 Pae.
645.

88 Williams V. Harter, 121 CaL 47,
53 Pac. 405; Fudickar v. East Biver-
side etc. Dist., 109 Cal. 29, 41 Pac.
1024; Lower etc. Co. v. Kings etc.
Co., 60 Cal. 408; Beynolds v. Hos-
mer, 51 Cal. 205.

89 Jacob v. Lorens, 98 Cal. 332, 33
Pac. 119. ^

90 Sec. 152, supra,

91 Supra, sec. 207; Flickinger v.
Shaw, 87 Cal. 126, 2 Am. St. Bep.
234, 25 Pac. 268, 11 L. B. A. 134;
Blankenship v. Whalej, 124 Cal. 300,
57 Pac. 79; Churchill, v. Bussell, 148
Cal. 1, 84 Pac. 155.

§ 228

CONTRACTS— CONVEYANCES

345

to the land or water itself ; he insisted only on a right to go upon
it and use it. The license or permission given by the tacit consent
of the United States was the thing emphasized. Emphasis was
.placed, not upon the thing itself, but upon the permission of the
government to make use of it, a license personal in its nature. Ac-
cordingly it has been held^ that a transfer of a mining claim
operated as a surrender of the grantor's right and the acquisition
of a new one by the grantee on taking possession, so that no writing
was needed, and transfers of possessory rights on the public do-
main were held not within the statute of frauds at all. The su-
preme court of the United States afSrmed this view.** To-day, in
spite of these decisions, a sale equivalent to a sale of anything
else, operating as a transmission of a right, not as the creation
of a new one, is recognized if in writing.^ The possessory estate
thus acquired has been elevated to the dignity of other interests
in realty, being reci^nized as an express grant from the government.
But the personal license characteristic, as concerns water rights at
least, remains of importance in this matter of parol sales.

A water right, then, may be transferred by a parol sale, provided
the grantee enters into possession.®^ The same result will be ac-
complished by a faulty deed.®® The rights of the grantee, however,
are different from those under a true sale, in writing. He does
not acquire the grantor's right by transmission; does not step into
his shoes; but acquires a new right as an appropriator by actual
diversion. Consequently, the grantee loses the priority his grantor
had. A parol sale allows claimants between the original appro-
priation and the date of the parol sale to assert priority in their
favor as against the grantee.®"

92 Table Mt. M. C. v. Stranahan,
20 Cal. 198.

w Union etc. Co. v. Taylor, 100 U.
8. 39, 25 L. ed. 541. And later again
in Blaek v. Elkhorn M.' Co., 163 U. S.
445, 16 Sup. Ct. Rep. 1101, 41 L. ed.
221, declared this principle to be cor-
rect.

M Ai to water rights cases already,
cited, and compare California Civil
Code, section 1411, "successor in in-
' terest." As to mining claims, Lind-
ley on Mines, section 642.

W Smith V. O'Hara, 43 Cal. 371;
Griseza t. Terwilliger, 144 Cal. 456,
77 Pac. 1034.

M Barkley v. Tieleke, 2 Mont. 59.

W gmith V. O'Hara, 43 Cal. 371;
Grisesa v. Terwilliger, 144 .CaL 456,
77 Pac. 1034; Chiatovich ▼. Davis, 17
Nev. 133, 28 Pac. 239; Salina etc. Co.
V. Salina etc. Co., 7 Utah, 456, 27 Pkc.
578; Union Mill & Min. Co. v. Dang-
berg, 81 Fed. 73, citing cases; Low v.
Schaffer, 24 Or. 239, 33 Pac. 678;
South Tule etc. Co. v. King, 144 Cal.
450, 77 Pac. 1032; Gould on Waters,
sec. 234 ; Pomeroy on Riparian Rights,
sees. 58, 89 ; Kinney on Irrigation, sec.
253.

846 THE LAW OF APPBOPBIATION. § 228

The California court says: **The objection made by defendant
is, that plaintiffs could not prove title by a parol sale, the interest
conveyed being realty. Plaintiffs answer that the evidence was not
offered to prove title, but as declarations against interest and as
showing abandonment, to defeat defendant's alleged title, and that
the court did not admit the evidence to prove title. Mr. Kinney
states the doctrine to be, that the right to the use of the water
acquired by prior appropriation, and the structure through which
the diversion is effected, must be conveyed by a written instru-
ment, as in the case of real property, and that a verbal sale is
nugatory.^ The author further says, however, that such a sale
works an abandonment, and the vendee takes his right simply as a
subsequent appropriator in his regular order with subsequent ap-
propriators.**

' ' Mr. Pomeroy says that abandonment may be expren and im-
mediate by the intentional act of the appropriator, or may be im-
plied from his neglect, failure to use due diligence in the construc-
tion of his works, non-use of them after completion and the like.
The general doctrine concerning the effect of abandonment is stated
to be, that the prior appropriator loses all his exclusive rights to
take or use the water which he had acquired. *A verbal sale and
transfer of his water right by a prior appropriator operates ipso
facto as an abandonment thereof. Such act shows an unequivocal
intent on the part of the appropriator to give up and relinquish all
of his interest, and, as it does not effect any transfer thereof to the at-
tempted assignee or vendee, the only possible result is an immediate
and complete abandonment. ' ^^ It is not necessary, we think, to
invoke the rule as to an executed parol contract such as arose in
Flickinger v. Shaw,^®* nor to pass upon the applicability of the
principle there enunciated to the present case. The evidence clearly
was admissible to show abandonment, and may be restricted to that
object, and thus restricted fully justifies the finding of the court.
It was not admitted to prove title, as clearly appears from the
ruling of the court. Defendant claimed through Terwilliger, her
husband, and offered evidence in support of her claim. It was

98 Citing oases. loi 87 Cal. 126, 22 Am. St. Bep.

90 Kinney on Irrigation, sees. 253, 234, 25 Pac. 268, 11 L. B. A. 134.
255, 264. • See supra, sec. 207.

100 Citing Pomeroy on Water
Kights, sees. 96, 97.

i 228

CONTRACTS— CONVEYANCES

347

competent for plaintiffs to show that long before defendant's deed,
and continuously for many years, he had treated his right as aban-
doned, and his verbal sale was admissible as tending to establish this
fact. The sale conferred no title upon Musgrave, but the subse-
quent use by him and his associates and their successors of all
the water was an appropriation of whatever water Terwilliger was
entitled to prior to the sale. " *^

This, principle that the grantee on a parol sale acquires a new
right 'as an appropriator by actual diversion, but that it operates by
way of abandonment, forfeiting priority, is that in force in Cali-
fornia. But in Montana and Oregon it is losing ground. There
the courts have refused to apply it to the case of a settler or squatter
who has taken no steps to obtain title by filing upon the land. "Siich
a bare settler has a possessory right to the land which, it is held,
may be transferred by parol, and the parol sale will carry the water
right as an appurtenance, preserving priority.*^ In McDonald v.
Lannen the court says: **We are satisfied that a verbal transferee
of a settler's claim and water right appurtenant thereto, who takes
possession of the same, is the successor in interest of the original
appropriator of the water, that he does not take it by recapture, and
that he can avail himself of his predecessor's priority." In this
case, Barkley v. Tieleke ^^ was held to have arisen out of mining
conditions and not to be applicable to appropriations of water for
agricultural purposes. Barkle}^ v. Tieleke was disapproved, if not
actually . overruled, and as it was relied on by Pomeroy,^^ and
Pomeroy was relied on by the California court in the late case
cited supra, this considerably weakens the rule that a parol sale
operates by way of abandonment. In Wyoming, while at first dis-
approved, ^^ the principle of the rule has been reasserted in another
connection.^^ A recent Oregon case says it is unable to see any
reason for the rule.^^

108 Griseza v. Terwilliger, 144 Cal.
456, 77 Pac. 1034. And see Johnston
v. Little Horse Creek Co., 13 Wyo.
208, 110 Am. St. Bep. 986, 79 Pac.
22, 70 L. R. A. 341.

108 McDonald ▼. Lannen, 19 Mont.
78, 47 Pac. 648 ; Wood v. Lowney, 20
Mont. 273, 50 Pac. 794; Hindman v.
Bizor, 21 Or. 112, 27 Pac. 13 (citing
Ore'gon cases) • Turner v. Cole, 31 Or,

154, 49 Pac. 972; Watts v. Spencer
(Or.), 94 Pac. 39.

iM Cited supra,

106 Sees. 58, 89, 96, 97.

106 Whalon v. North Platte etc. Co.,
71 Pac. 995.

107 Johnston v. Little Horse Co., 13
Wyo. 208, 110 Am. St. Bep. 986, 79
P&c. 22, 70 L. B. A. 34L

106 Watts V. Spencer (Or.), 94 Pac.
39.

348 THE LAW OP APPEOPEIATION. § 228

The reasoning on which this rule is based would lead to the
harsh result that a parol sale or a faulty deed endangers the rights
of the grantor, by working an. abandonment of his priority in ease
the object of the parol sale is not carried out. Until possession is
transferred (possession of ditches, etc., since that is equivalent to
possession of the water right,) he would not be harmed, as
until then the parol sale and abandonment would not be complete.
But if the grantee, having taken possession, wishes to retransfer to
the grautpr, or if, for some reason, the grantor wishes to re-enter,
as, for example, in case of default on promises by the grantee,
the grantor himself could now claim only as an appropriator by ac-
tual diversion, and would have lost his priority. The writer has not?
seen any decision on the point ; but it might properly be held that
the abandonment is only conditional ; that a parol sale is evidence
of an abandonment, but not conclusive, depending on the success
of the whole plan of which it was a part. This would be supported
by the decision in McGuire v. Brown,^^ where an owner abandoned
an old ditch and used the water through a new one, which, it turned
out, he had mistakenly built on another man's land without right.
This, it was held, gave no right to use the water in the new ditch,
but- there was not necessarily an abandonment of the right to use it
in the old one. However, in Qriseza v. Terwilliger,**® it is said
that a parol sale is an unequivocal sign of relinquishment, and
works ipso facto as an abandonment.

too 106 Cal. 660, 39 Pac. 1069, 30 "O 144 Cal. 456, 77 Pac. 1034, cit-

L. R. A. 384. Ing Pomeroy on Biparian Bights, set.

89.

LOSS OF RIGHT. 349

CHAPTER XIV.

LOSS OF BIGHT.

§ 22Sf. Introdnctory.

A. ABANDONMENT.

S 230. Abandonment is voluntary and a qnestion of fact.

§ 231. Non-user.

S 232. Same.

S 233. Discharged waste.

S 234. Recapture. .

S 235. Parol sale or faulty deed.*^

§ 236. Failure of diligence in construction work.

B. FORFEITURE.

S 237. Failure to comply with statute in appropriating.

S 238. Smith v. Hawkins.

f 239. Forfeiture under statutes.

C. ADVERSE USE.

S 240.* In general.

S 241. Effect of adverse use.

S 242. Extent.

S 243. Essentials.

S 244. Continuous.

S 245. Exclusive; uninterrupted.

S 246. Open; notorious.

S 247. Claim of right— Color of title.

§ 248. Hostile to owner — Permission.

S 249. Invasion of right — Chance to prevent.

§ 250. Same.

§ 251. Payment of taxes.

§ 252. Against the United States.

8 253. Conclusion.

D. ESTOPPEL.

S 254; Elements of estoppel in pais,
§ 255. Estoppel by silence.

350

THE LAW OP APPROPRIATION

fifi 229, 230

§ 229. Water rights of appropriation may, it is true, continue
indefinitely, but they may likewise come to an end in several ways,
viz., by abandonment, forfeiture, adverse use, estoppel or eminent
domain proceedings.

A. ABANDONMENT.

§ 230. Abandonment is Voluntaiy and a Qnestion of Fact —

As the law of appropriation arose as a branch of the law of pos-
sessory rights on the public domain, the right lasts only during the
retention of possession of the stream for legitimate purposes. The
retention of possession is a condition upon retention of the right;
and the relinquishment of possession constitutes an abandonment
of the right.

To constitute abandonment there must be a concurrence of act
and intent, the relinquishment of possession, and the intent not to
resume it for a beneficial use, so that abandonment is always volun-
tary, and a question of fact.^

1 Arizona^ — Gould v. Maricopa etc.
Co., 8 Ariz. 429, 76 Pac. 598 ; Marlar
V. Maricopa ete. Co., 76 Pac. 1125;
Salt River etc. Oo. v. Slossei: (Ariz.),
76 Pac. 1125; Brockman v. Grand
Canal Co., 8 Ariz. 451, 76 Pac. 602.

California. — Wood v. Eftwanda W.
Co.. 147 Cal. 233, 81 Pac. 512; Utt
V. Frey, 106 Cal. 397, 39 Ptoic. 807,
quoted infra; Integral Quicksilver M.
Co. V. Altoona M. Co., 75 Fed. 380,
21 C. C. A. 409; Hewitt v. Story, 64
Fed. 510, 12 C. C. A. 250, 30 L.
R. A. 265, and cases t'n/ro.

Colorado, — People v. Farmers' etc.
Co., 25 Colo. 202, 54 Pac. 626;
Platte etc. Co. v. Central 'etc. Co..
32 Colo. 102, 75 Pac. 391; Greer
V. Heiser, 16 Colo. 306, 26 Pac. 770;
Beaver Brook Co. v. St. Vrain Co ,
6 Colo. App. 130, 40 Pac. 1066;
New Mercer Co. v. Armstrong, 21
Colo. 357, 40 Pac. 989; Putnam v.
Curtis, 7 Colo. App. 437, 43 Pac.
1056; Nichols v. Lantz, 9 Colo. App.
1, 47 Pac. 70; Hall v. Lincoln, 10
Colo. App. 360, 50 Pac. 1047; North
Am. Exploration Co. v. Adams
(Colo.), 104 Fed. 404, 45 C. C. A.
185; Lower Latham D. Co. v. Lou-

den Irr. Co., 27 Colo. 267, 83 Am.
St. Bep. 80, 60 Pac. 629; Hector M.
Co. V. Valley View M. Co., 28 Colo,
315, 64 Pac. 205; Bntterfield v.
O'Neill, 19 Colo. App. 7, 72 Pac.
807^ Boulder etc. Co. v. Leggett etc.
Co., 36 Colo. 455, 86 Pac. 101;
Buckers etc. Co. v. Farmers' etc.
Co., 31 Colo. 62, 72 Pac. 49; Cooper
V. Shannon, 36 Colo. 98, 85 Pac.
175; O'Brien v. King (Colo.), 92
Pac. 945; Alamosa Co. v. Nelson
(Colo.), 93 Pac. Ills.

Idaho. — Welch v. Garrett, 5 Idaho,
639, 51 Pac. 405; Ada Irr. Co. v.
Farmers' Canal Co., 5 Idaho, 793,
51 Pac. 990, 40 L. B. A. 485; Last
Chance etc. Co. v. Bunker Hill etc.
Co., 49 Fed. 430.

Montana, — ^Norman v. Corbley, 32
Mont. 195, 79 Pac. 1059; Atchison
v. Peterson, 1 Mont. 561; Barkley
v. Tieleke, 2 Mont. 61; Kleinschmidt
V. Greiser, 14 Mont. 484, 43 Am. St.
Bep. 652, 37 Pac. 5; Middle Cr.
Co. V. Henry, 15 Mont. 558, 39 Pac.
10.'>4; Goon v. Proctor, 27 Mont. 526,
71 Pac. 1003; Hays v. Buzard, 31
Mont. 74, 77 Pac* 423; Gassert v.
Noyes, 18 Mont. 216, 44 Pac. 959.

fi 230

LOSS OP RIGHT.

351

'*As abandonment is a matter of intention, it is peculiarly within
the province of a trial court to determine from all the facts and
eircumfitances of each particular ease whether abandonment has or
has not taken place, ' ' ^

A sale of the land on which the water is used, without passing
the water right, is not necessarily an abandonment of the water
right,^ nor is an exhaustion of the mine for which the water was
originally used,^ nor is the posting of a second notice of appropria-
tion necessarily an abandonment of rights under a former notice.'^
These are all evidence, but not conclusive. On the other hand, an
abandonment is shown where the ditch was filled in and sown over
with grass ;« also where the land irrigated is abandoned and non-
user of the water ensues for a long time, after which a later acquisi-
tion of other land does not revive the ri^t against interveners^
On abandonment of oil locations, the right to the wells thereon bored
for oil ceases also, though water flows from them, there being
no intent to appropriate the water to a beneficial use.^

A typical case of abandonment is where the appropriators' pur-
pose has been accomplished and they disperse, the mine for which

Nebraska. — Farmere' Inr. Dipt. v.
Fmnk, 72 Neb. 136, 100 N: W. 286.

Nevada, — Schulz v. Sweeney, 19
Nev. 359, 3 Am. St. Rep. 888, 11
Pac. 253.

Oregon. — ^Dodge v. Marden, 7 Or.
456; Mo8P ▼. Rose, 27 Or. 595, 50
Am. St. Hep. 743, 41 Pac. 666; Wi-
mer v. Simmons, 27 Or. 1, 50 Am.
St. Rep. 685, 39 Pac. 6; Turner v.
Cole, 31 Or. 154, 49 Pac. 972; Watts
V. Spencer (Or.), 94 Pac. 39.

Z/toA.— Stalling v. Ferrin, 7 Utah,
477, 27 Pac. 686; Herriman Irr. Co.
V. Keel, 25 Utah, 96, 69 Pac. 719;
Promontory etc. CSo. v. Argile, 28
Utah, 398, 79 Pac. 47.

2 Cooper ▼. Shannon, 36 Colo. 98,
85 Pac. 175.

Facts held to show abandonment.
Broekman v. Grand Canal Co., 8 Ariz.
451, 76 Pac. 602; Nichols v. Lant«,
9 Colo. App. 1, 47 Pac. 70; Oviatt
V. Big Four Co., 39 Or. 118, 65
Pac. 811; Oppenlander v. Left Hand
Ditch Co., 18 Cplo. 142, 31 Pac. 854;
Lambom v. Bell, 18 Colo. 346, 32
Pac. 989, 20 L. R. A. 241; Ruther-
ford V. Lucemfe Canal & P. Co., 12
Wyo. 299, 75 Pac. 446; Ophir Min-
ing Co. V. Carpenter, 4 Nev. 534;

Kirman v. HunnewiU, 93 Cal. 519,
29 Pac 124; Dorr v. Hammond, 7
Colo. 79, 1 Pac. 693; Smith v. Green,
109 Cal. 228, 41 Pac. 1022; Platte
Water Co. v. Northern etc. Co., 12
Colo. 525, 21 Pac. 711,

Facts held not to show abandon-
ment. Utt V. Frey, 106 Cal. 392, 39
Pac. 807; Hays v. Busard, 31 Mont.
74, 77 Pac. 423; Greer v. Heiser, 16
Colo. 306, 26 Pac. 770; Puti^m v.
Curtis, 7 Colo. App. 487, 43 Pac.
1066; Welch v. Garrett, 5 Idaho, 639,
51 Pac. 405; Promontory Co. v. Ar-
gile, 28 Utah, 398, 79 Pac. 47 ; Farm-
ers' etc. Co. V. New Hampshire etc.
Co. (Colo.), 92 Pac. 290.

3 Dodge V. Mar den, 7 Or. 457.

4 Lowden v. Frey, 67 Cal. 474,
8 Pac. 31.

B Norman v. Corbley, 32 Mont. 195,
79 Pac. 1059. See Hall v. Lincoln,
10 Colo. App. 360, 50 Pac. 1047, ex-
amining evidence and holding no
abandonment.

6 Stalling V. Ferrin, 7 I'tah, 477,
27 Pac. 686.

T Rutherford etc. Co. v. Lucerne
etc. Co., 12 Wyo. 299, 75 Pac 445.'

8 WolfskiU V. Smith, 5 Cal. App.
175, 89 Pac. 1001.

354

THE LAW OF APPROPRIATION.

fi 231

The decisions to this effect may be divided into two classes :

(1) If at the start, the water right having been newly acquired
by completion of the preparatory work, there is a failure for an
unreasonable time under the circumstances to apply the water to a
useful purpose, there is an abandonment. No definite period of
time is set in the eases generally. The non-user is not conclusive,
but a question depending upon (under the facts of each case) what
is an unreasonable delay ; that is, what non-user under the circum-
fltances reasonably indicates the intent, in that case, not to apply
the water to a useful purpose. This has been discussed at length
in considering * 'future needs." ^

(2) After application and use have begun, a non-user thereafter
owing to breakage o{ apparatus, during change of plans, or from
other cause. Here again the rule of the cases generally is that no
definite time is set. . The non-user being for a reasonable time under
the circumstances of each case, there is no abandonment.^ Upon
the facts involved, for example, a reasonable time has lasted for
three years,^ eleven years,^ fourteen years.^ If work is stopped
because the stream ceases to flow (act of Ood) or because of tunnel-
ing (t. e,, tortious act) of another person, there is no abandonment.^
But if unreasonably continued, here again it will be evidence (not

24 Supra, sees. 171-173.

25 Senior v. Anderson, 115 Cal. 496,
47 Pac. 454; Sieber v. Frink, 7 Colo.
149, 2 Pac. 901; Dorr v. Hammond,
7 Colo. 79, 1 Pac. 693; People v.
Farmers' etc. Co., 25 Colo. 202, 54
Pac. 626; Welch v. Garrett, -5 Idaho,
639, 51 Pac. 405; Ada etc. Co. v.
Farmers' etc. Co., 5 Idaho, 793, 51
Pac. 990, 40 L. R. A. 485; McCauley
V. McKeig, 8 Mont. 389, 21 Pac. 22;
Gossert v. Nojes, 18 Mont. 216, 44
Pac. 959; Sloan v. Glancy, 19 Mont.
70, 47 Pac. 334; Smith v. Hope Min-
ing Co., 18 Mont. 432, 45 Pac. 632;
LobdeU v. Hall, 3 Nev. 507; Turner
V. Cole, 31 Or. 154, 49 Pac. 972;
Wimer v. Simmons, 27 Or. 1, 50 Am.
St. Rep. 685, 39 Pac. 6; Gill v. Ma-
lan, 29 Utah, 431, 82 Pac. 471; In-
tegral etc. Co. V. Altoona etc. Co.
(Cal.), 75 Fed. 379, 21 C. C. A. 409;
North Am. etc. Co. v. Adams (Colo.),
104 Fed. 404, 45 C. C. A. 185;
Pomeroy on Riparian Rights, sec. 90;
Famham on Waters, sec. 691; 17
Am. & Eng. Encj. of Law, 517.

ao Gassert v. Noyes, 18 Mont. 216,
44 Pac. 959.

27 North American etc. Co. v.
Adams (Colo.), 104 Fed. 404, 45 C.
C. A. 185.

28 Wimer v. Simmons, 27 Or. 1, 50
Am. St. Rep. 685, 39 Pac. 6.

29 Santa Barbara v. Gould, 143 Cal.
421, 77 Pac. 151; Putnam v. Cur-
tis, 7 Colo. App. 437, 43 Pac. 1056.

''The last seven years preceding
the trial of the action had been ex-
ceptionally 'dry,' and during them
the flow of water had ceased earlier
in the spring than in former years.
The fact that during this period the
plaintiffs had not been able to get as
much water as theretofore did not de-
stroy the continuity of their use, nor
deprive them of the right to use the
amount formerly diverted in the event
that the flow of the stream should
again furnish such amount.'' HufT-
ner v. Sawday, Cal. Sup., Feb. 18,
1908.

8 232 LOSS OF RIGHT. 355

conclusive, but taken with all the circumstances of the case) of an
intent not to apply the water to a useful purpose, and an abandon-
ment.^ During the temporary cessation of use, others may use the
water .^*

The rule concerning non-user is thus summed up in Utt v. Frey : ^
**The right which is acquired to the use of water by appropria-
tion may be lost by abandonment. To abandon such right is to
relinquish possession thereof without any present intention to re-
possess. To constitute such abandonment there must be a concur-
rence of act and intent, viz., the act of leaving the premises or
property vacant, so that it may be appropriated by the next comer,
and the intention of not returning.^ The mere intention to aban-
don, if not coupled with yielding up possession or a cessation of
user, is not 8u£Scient ; nor will the non-user alone without an inten-
tion to abandon be held to amount to an abandonment. Abandon-
ment is a question of fact to be determined by a jury or the court
sitting as such. Yielding up possession and non-user is evidence of
abandonment, and under many circumstances sufficient to warrant
the deduction of the ultimate fact of abandonment. But it may be
rebutted by any evidence which shows that, notwithstanding such
non-user or want of possession, the owner did not intend to aban-
aon."

There is no abandonment where the non-use was during the ad-
ministration of a decedent owner's estate,^ or during temporary
shut-down of a mine,^ or during bmia fide efforts of a colonization
company to induce immigration.^

What is beneficial user has already been discussed.^

§ 23S. Same. — ^Like the rule of reasonable care in the law of
negligence, the rule of reasonable time here is indefinite. In cases
where there is no evidence of importance bearing on the surround-
ing circumstances it would be difficult for the jury to say whether

30 Alamosa Co. v. Nelson (Colo.), McNulty, 24 Cal. 345; Willson v.
93 Pae. 1113, and cases cited supra, Cleveland, 30 Cal. 192.

sec. 230. w Turner v. Cole, 31 Or. 154, 49

31 Ante, sec. 49. Pac. 971.

82 106 CaL 397, 38 Pac. 807. 36 Smith v. Hope etc. Co., 18 Mont.

33 ating Jiidson v. Malloj, 40 Cal. 432, 45 Pac. 632.

^99; BeU v. Bed Bock etc. Co., 36 36 Nevada etc. Co. v. Bennett, 30

Cal. 214; Moon v. Rollins, 36 Cal. Or. 39, 60 Am. St. Bep. 777, 45 Pac.

333, 95 Am. Dec. 181; St. John v. 472.

Kidd, 26 CaL 272; Bichardson v. 37 Supra, sees. 119, 170.

356 THE LAW OF APPROPBIATION. 9 233

the non-user wafi for an unreasonable time. It would be enough
in such eases to say, as in the law of negligence, that the side claim-
ing there is an abandonment, having failed to convince the jury of
the unreasonable length of the non-user, has failed to sustain the
burden of proof, and failed to make out its caae.^ An attempt has
been made to cover such a case by a resort to a presiunption of
abandonment from non-user.^ This was early rejected in Cali-
fornia.^ The later case of Smith v. Hawkins** treats the matter

and avoids the diflSculty in an entirely new way ; viz., on the prin-
ciples not of abandonment at all, but of forfeiture. This case
arbitrarily selects five years as a limit of non-user under any circum-
stances. The test of intent is then rejected and the principles of
forfeiture acting in invitum substituted.

Accepting Smith v. Hawkins as law, the rule, as stated above,
that non-user must be considered on the principles of abandonment
under test of reasonableness remains unaffected, so long as five
years have not elapsed. This is acknowledged in Smith v. Haw-
kins. That case merely introduces a new principle governing the
case at the expiration of the five-year period. That case is further
considered below.*^

The introduction of the principle that non-user after a definite
period of time operates as a forfeiture as distinguished from
abandonment was hence introduced in California only recently,
and by a decision of the court, not by legislation. In the recent
irrigation codes of the arid States this new principle usually finds
a place also, as considered below.'**

§ 233. Discharged Waste. — Where water has been severed
from the natural stream and used in an artificial watercourse, such
as a ditch or flume, we have seen that it has become private prop-
erty (personfal property), and is dealt with by the law as a corpus
(as distinguished from the usufructuary water right in the natural
stream), not longier subject to the law of naturally running waters.
In discharging it as waste from the ditches, etc., the question is

38 Beaver etc. Co. v. St. Vrain etc. ^ Partridge v. McKinnej, 10 Cal.
Co., 6 Colo. App. 130, 4 Ptoic. 1066; J81.

Platte etc. Co. v. Central etc. Co., 4i no Cal. 122, 42 Pac. 458,

32 Colo. 102, 75 Pac. 391. 42 Sec. 238.

39 Sieber v. Frink, 7 Colo. 148, 2 « Infra, sec. 239.
Pac. 901 J Kinney on Irrigation, sec.

257.

S 233

LOSS OF RIGHT.

357

not one of abandonment of a water right, but of abandonment of
specific personal property, viz., the very particles of water that are
discharged. The question is of importance here, though it should
be noticed that it turns on the law of artificial watercourses, and
not on the law of natural waters.

There is an abandonment of whatever runs waste after use.
When the owner has made all the use of the water he wants, and
lets the waste run oflf from ditches without intent to recapture, the
waste is abandoned, and the owner of the water right no longer
has any claim upon it.'" If it finds its way by natural channels
into another creek, he cannot go there and reclaim it as against
other appropriators there who made use of it.^ If a miner digs a
ditch to drain away the water from a stream so that the bed can
be mined, the water is abandoned.^ Likewise of water from
a mine tunnel where there is no intent to recapture.'*'^ In one case
it is said : ^ **The water from the tunnel finds its way to the stream
and has become a part thereof. It inures to the benefit of all
taking water therefrom. In this particular water the claimants
have no interest or right which will permit them to segregate a vol-
ume of water equal to that flowing from the tunnel, even if it be
an actual increase, and assert an exclusive right thereto as against
others diverting water from the stream."^

The abandonment from an artificial watercourse is, however, only
of the specific water allowed to run waste — not of any of the incom-
ing water, owing to the distinction of the corpus of the water as
personalty in the artificial watercourse, and the water right itself
as an intangible use and flow or usufruct. One may cease the
abandonment of waste from a ditch, and so use the water that none
of it thereafter runs waste at all,^ or so that it runs off in a new
place where people below no longer can get it.^^ No permanent
right to have the discharge continued can be acquired either by

44 Dougherty v. Creary, 30 Cal.
290, 89 Am. Dec. 116; Divis v. Gale,
32 C^l. 26, 91 Am. Dec. 554; Color-
ado etc. Co. V. Rocky Ford etc. Co.,
3 Colo. App. 545, 34 Pac. 580; Farm-
era' etc. Co. V. Bio Grande ete. Co.,
37 Colo. 512, 86 Pac. 1042, and cases
cited in next section.

46 Eddy V. Simpson, 3 C'nl. 249,
58 Am. Dec. 408; Schulz v. Sweeney,
19 Nev. 359, 3 Am. St. Rep. 88S, 11
Pac. 253.

46 McKinney v. Smith, 21 Cal. 374.

47 See next section*.

48 Farmers' etc. Co. v. Rio Grande
etc. Co., 37 Colo. 512, 86 Pac. 1042.

4» Citing La Jara Creamery & Live-
stock Asen. V. Hanson, 35 Colo. 105,
>^3 Pac. 644.

■■•>o Hanson v. McCue, 42 Cal. 303,
commented on in Katz v. Walkinshaw,
141 Cal. 116, at 129, 99 Am. St. Rep.
35, 70 Pac. 663. 74 Pac. 766.

'»t Correa v. Frietas. 42 Cal. 339.

358

THE LAW OF APPROPRIATION.

fi 233

estoppel or prescription, even though the lower claimants had built
expensive flumes or ditches to catch the waste.^^

Again it should be repeated that this rule deals only with waste
discharged from an artificial watercourse or appliance. Bights in
the surplus flow of the natural stream itself may well be acquired
by lower claimants, as has been discussed under the question of
successive appropriators. The lower claimants may appropriate
the surplus of the natural flow,^ to which they will have a vested
right that others cannot deprive them of by changing their place of
use, or in any other way.

Between the case of lower claimants to the natural stream and the
case of lower claimants to artificial discharge from a ditch is the
intermediate case of lower claimants on a natural stream into which
the waste from a ditch has been discharged. Are these lower
claims to be viewed as claims to an artificial source of supply
on the principles just stated of discharge from ditches, or as claims
to a natural source of supply giving vested rights ? The view that
is most just, and that seems to prevail, is the latter. Lower claim-
ants on the natural streams need not look beyond the fact that the
conditions at that point are those of a natural stream. The waste
discharged into the stream above may have been originally di-
verted from that very stream; or, in any event, the effect below
is entirely the same as though the increment were a natural tribu-
tary. When claimants have been using the water on the natural
stream below, the upper discharge into the stream cannot be cut
off. Lower usufructuary rights attach on the principles of succes-
sive appropriators. The place of use by the one above who has
been thus discharging his waste water into a natural stream cannot
be changed if thereby the discharge into the stream is discontinued,
or lower claimants are thereby injured in any other way, under
the principles already discussed with regard to ** change of place of

use.

»» 54

52 Dougherty v. (Treary, 30 Cal. 290,
89 Am. Dec. 116; Stone v. BumpuH,
40 Cal. 428; Stockman y. Riverside
etc. Co., 64 Cal. 57, 28 Pac. 116;
Anaheim etc. Co. v. Semi- Tropic Co.»
64 Cal. 185, 30 Pac. 623; Liix v.
Haggin, 69 Cal. 255, at 266, 278, 10
Pac. 674 (disapproving Parke v.
Kilham, 8 Cal. 77, 68 Am. Dec. 310,
on this point) ; Lakeside etc. Co. v.
Crane, 80 Cal. 181, 22 Pac. 76; Har-

grave v. Cook, 108 Cal. 72, 41 Pac.
18, 30 L. R. A. 390. See Arkwright
V. Gell, 5 Mees. & W. 226; and nee
ante, sees. 156, 184, where the mat-
•ter has been discussed at length.

r»3 Barneich v. Mercy, 136 Cal. 205,
68 Pac. 589; and see Ball v. Rehl,
95 Cal. 606, 30 Pac. 780; ante, sec.
47.

M Supra, sec. 184.

§ 234

LOSS OF RIGHT.

359

§ 234. Recapture. — If the discbarge from the ditch or tunnel
or other structure is made not because it is waste, but for con-
venience in handling it, intending at the time to recapture it at
some lower point, it is not abandoned, for abandonment is always
a question of intention. Water can be discharged into )a stream
as a link in a ditch line and taken out again, though there are prior
appropriators on the same stream. It is not abandoned where there
is an intent to recapture it.^*^ In a very early California case
Mr. Justice Stephen Field, delivering the opinion of the court, said :

**In the case^at bar the channel of the south fork of Jackson
Creek is used as a connecting link between the Amador County
canal and the ditch of the defendants. The water from the canal
is emptied into the fork with no intention of abandoning its use,
but for the sole purpose of supplying the ditch. .... There may
be some difficulty in cases like the present, in determining with
exactness the quantity of water which parties are entitled to divert.
Similar difficulty exists in the case of a mixture of wheat and corn —
the quantity to be taken by each owner must be a matter of evi-
dence. The courts do not, however, refuse the coi^ideration of
such subjects, because of the complicated and embarrassing char-

55 California. — Hoffman v. Stone, 7
Cal. 46; Butte etc. Od. v. Vaughn, 11
Cal. 143, 70 Am. Dec. 769; Weaver v.
Eureka L. Co., 15 Cal. 274; Davis v.
Gale, 32 Cal. 26, 91 Am. Dec. 554;
Burnett v. Whiteside, 15 Cal. 35;
Richardson v. Kier, 37 Cal. 263; Wil-
cox V. Hausch, 64 Cal. 461, 3 Pac.
108; Churchill v. Rose, 136 Cal. 576,
69 Pac. 416; Wutchumna etc. Co. v.
Pogue, 151 Cal. 105, 90 Pac. 362;
Pomona W. Co. v. San Antonia W.
Co., Cal. Sup., Jan. 17, 1908; Lower
Tule etc. Co. v. Angeola etc. Co., 149
Cal. 496, 86 Pac. 1081; Creighton v.
Kaweah etc. Cfe., 67 Cal. 222.

Colorado, — Platte etc. Co. v. Buck-
ers etc. Co., 25 Colo. 77, 53 Pac. 334;
Oppenlander v. Left Hand Ditch Co.,
18 Colo. 142, 31 Pbc. 854; Buckers
etc. Co. V. Farmers' etc. Co., 31 Colo.
62, 72 Pac. 49; Biplej v. Park etc.
Co. (Colo.), 90 Pac. 75.

Idaho* — ^Parke v. Bonlware, 7 Idaho,
490, 63 Pac. 1045.

Moniivio. — Beaverhead etc. Co. v.
Dillon etc. Co., 34 Mont. 135, 85 Pac.
880.

Nevada. — Schulz v. Sweeney, 19
Nev. 359, 3 Am. St. Rep. 888, 11
Pac. 253.

Oregon. — Simmons v. Winters, 21
Or. 35, 28 Am. St. Rep. 727, 27 Pac.
9; McCall v. Porter, 42 Or. 56, 70
Pac. 822, 71 Pac. 976.

Utah.— Fnller v. Sharp (Utah), 94
Pac. 817; Herriman etc. Co. v. Kell,
25 Utah, 96, 69 Pac. 719; Herriman
etc. Co. v. Butterfield Min. etc. Co.,
19 Utah, 453, 57 Pac. 537, 51 L. B. A.
930.

See Cal. Civ. Code, sec. 1413; South
Dakota Stats. 1905, p. 201, sec. 4;
Oklahoma Stats. 1905, p. 274, sec. 3;
Washington Stats. 1907, c. 222, p.
285, requiring a petition to court and
appointment of commissioners where
the right of recapture is asserted.
The point is usually covered under
the recent statutes of the various
states in accord with the above de-
cisions.

See, also, Elliot v. Fitchburg Ry.,
10 Cush. (Mass.) 193, 57 Am. Dec.
85, and supra, sec. 62.

362 THE LAW OF APPROPRIATION. § 234

varying the forms may have been, whenever it has been presented.
The principle in brief is this : that where one is entitled to the use
of a given amount of water at a given point, he may not complain
of any prior use made of the water which does not impair the
quality or quantity to which he is entitled, and, upon the other
hand, he may not lay claim to any excess of water over the amount
to which he is entitled, however it jnay be produced. In the Vaughn
case, supra, the question turned upon the prior use. In Creighton
V. Kaweah Irrigating Company "^^ it is said: 'At best, the plain-
tiffs would be entitled only to have the defendant enjoined from
obstructing the flow of that which would have naturally flowed un-
aided by artificial means, with which the plaintiff is not connected. '
In Wiggins v. Muscupiabe L. & W. Co.,*^^ this whole question is
elaborately considered, and full recognition is accorded of the right
to water of one who saves as well as to the one who develops it.
It there appeared that one hundred inches of water were naturally
lost by absorption and evaporation in passing through the natural
channel from the dam and ditch of an upper riparian owner to the
land of a lower owner. It was held that a court of equity in
dividing the flow of the stream might allow the upper owner to
provide artificial means for carrying all the waters of the stream
in excess of the one hundred inches to the land of the lower owner,
and permit the upper owner to use so much of the one hundred in-
ches as he could save by such artificial means, and, quoting from the
opinion, it is said: 'The plaintiff could, under no circumstances,
be entitled to the use of more water than would reach his land by
the natural flow of the stream, and, if he receives this flow upon
the land, it is immaterial to him whether it is received by means
of the natural course of the stream or by artificial means. On the
other hand, if the defendant is enabled by artificial means to give
to the plaintiff all of the water he is entitled to receive, no reason
ctfn be assigned why it should not be permitted to divert from the
stream where it enters its land and preserve and utilize the one
hundred inches which would otherwise be lost by absorption.'
This same doctrine is recognized by all the courts which have been
called upon to consider it."'''

73 67 Cal. 222, 7 Pac. 658. Utah, 453, 57 Pac. 541, 51 L. R. A.

74 113 Cal. 195, 54 Am. St. Rep. 930; Farnham on Waters, sec. 672.
337, 45 Pac. 160, 32 L. R. A. 667. Note that the Wiggins case was

75 Platte Irr. Co. v. Imperial Co., decided with regard to riparian pro-
25 Colo. 77, 53 Pac. 335; Herriman prietors at common law.

Irr. Co. V. Butterfield Min. Co., 19

fifi 235, 236 LOSS OF BIGHT. 363

The decisions concerning the diversion of *' storm waters'' from
a riparian proprietor may possibly be rested on this groundJ®
The right to recapture seepage against a riparian owner (seepage
entering the stream from neighboring irrigated land) has been
deniedJ*^

§ 236. Parol Sale or Faulty Deed.— Owing to the insistence
in the early days on the personal license side of possessory rights
on the public domain, a conveyance operated on the principle of
surrender and admittance, the grantor abandoning, and the
grantee receiving his right because of his newly acquired posses-
sion. A sale of a possessory right was an unequivocal sign of
intent to relinquish on the grantor's part, and hence was evi-
dence of an abandonment.'^®

To-day, possessory rights have been so far raised into the dignity
of real estate that a sale will, if in writing so as to satisfy the
statute of frauds, operate as a transmission of title, like any other
conveyance, without loss of priority. But still the old view obtains
where the sale is by parol, or by faulty deed. Such a sale is not
inoperative. It constitutes an abandonment on the part of the
grantor, and the creation of a new right in the grantee as a new
appropriator by actual diversion. Priority is lost. Such a sale
does not operate as an abandonment, however, until completed
by putting the grantee in possession. The mere attempt to aban-
don (or an unsuccessful attempt at a parol sale) is not enough
without the actual relinquishment of possession.''®

§ 236. Failure of Diligence in Oonstruction Work. — ^An appro-
priator seeking the benefit of the doctrine of relation loses the
benefit of that doctrine if he fails to use diligence in building his
ditches and other construction work. But this is not a question
of abandonment. It Is matter precedent showing that no right
was ever obtained against the other claimant who has performed
the requisite formalities.®*^ The two principles should be kept dis-
tinct. That this does not rest on abandonment is shown by the rule

76 Infra, sec. 322. ' 79 The cases are cited, supra, see.

77 Southern Cal. Co. v. Wilshire, 228.

144 Cal. 69, at 73, 77 Pac. 767. 80 Nevada etc. Co. v. Kidd, 37 Cal.

78 Supra, sec. 228; Black v. Elk- 282.
horn Min. Co., 163 IT. 8. 445, 41 L.

ed. 221, 16 Sup. Ct. Rep. 1101.

360

THE* LAW OF APPROPRIATION.

§ 234

acter of the questions to which they give rise. If exact justice can-
not be obtained, an approximation to it must be sought, care being
taken that no injury is done to the innocent party .*^ The burden
of proof rests with the party causing the mixture.'^ He must show
clearly to what portion he is entitled. He can claim only such
portion as is established by decisive proof. The enforcement of
his right must leave the opposite party in the use of the full
quantity to which he was originally entitled."^ In one case** the
same principle was applied to the increase of a stream that had
been "developed" by tunneling; and in others,®® where the incre-
ment was introduced by merely clearing out a choked channel;
or by other artificial means;** or by enlarging flow of springs;*^
or by providing an artificial channel to save seepage and evapora-
tion.®*

The intent to recapture the water must be present at the time
it is discharged from control,** and must be very clearly shown,*^
otherwise an injunction will lie to prevent its recapture.®* The
intent to recapture is essential, and without it, the water is aban-
doned.®^

Water may be drained from a mine and emptied into a stream
with the intent to recapture it at some other point, and a decree
settling rights upon the stream rendered previously does not pre-
vent the recapture of the mine water for irrigation.®*

M Accord Burnett v. Whitesides,
15 Cal. 35.

5T Accord Wilcox v. Hausch, 64
Cal. 461, 3 Pac. 108; Herriman etc.
Co. V. Keel, 25 Utah, 96, 69 Pac. 719 ;
Herriman etc. Co. v. Butterfield Min.
etc. Co., 19 Utah, 453, 57 Pac. 537,
51 L. R. A. 930, the latter holding
that seepage and evaporation must
be deducted. See, also, Buckers etc.
Co. V. Farmers' etc. Co., 31 Colo.
62, 72 P&c. 49.

58 Butte C. & D. Co. V. Vaughn,
11 Cal. 143, 70 Am. Dec. 769.

60 Mayberry v. Alhambra etc Co.,
125 Cal. 444, 54 Pac. 530, 58 Pac.
68, saying: "The right to the arti-
ficial increment is quite distinct from
the title to the natural flow, and the
owner thereof may reclaim it from
the channel.'' Accord, Buckers' etc.
Co. V. Farmers' etc. Co., 31 Colo. 62,
72 Pac. 49. See Farmers' Union etc.

Co. V. Bio Grande etc. Co., 37 Colo.
512, 86 Pac. 1042.

«o P&ige V. Bockv Ford etc. Co.,
83 Cal. 84, 21 Pac. 1102, 23 PUc.
875.

w Beaverhead etc. Co. v. Dillon etc.
Co., 34 Mont. 135, 85 Pac. 880.

«2 Churchill v. Rose, 136 Cal. 576,
69 Pac. 416.

68 Pomona W. Co. v. San Antonio
W. Co., Cal. Sup., Jan. 17, 1908;
Wiggins V. Muscupiabe Co., 113 Cal.
182,. 54 Am. St. Bep. 337, 45 Pac.
160, 32 L. B. A. 667.

M Cases, last section, supra,

65 Schulz V. Sweeney, 19 Nev. 359,
3 Am. St. Rep. 888, 11 Pac. 253.

«e Wilcox V. Hausch, 64 CW. 461,
3 Pac. 108.

07 Cases, last section, supra, e. g,.
Farmers' etc. Co. v. Rio Grande etc.
Co., 37 Colo. 512, 86 Pac. 1042.

68 Ripley V. Park etc. Co. (Colo.),
90 Pac. 75.

f 234 LOSS OF RIGHT. 301

The principle here involved is that running through all the law
qt watercourses; the distinction between the property in the water
itself and the right to have its continual flow. The usufructuary
right extends only to the natural flow of the stream, the specific
waters of which axe nobody's property; while the property right in
the water itself extends, free of such usufruct in others, to what-
ever liquid has, by the labor of man, been artificially added or pro-
duced. The usufruct in the stream does not extend (in the ab-
sence of abandonment) to the artificial increment introduced into
the channel, but such increment belongs to the man whose labor
produced it or brought it there when naturally it would not have
existed there. It is,- of course, essential that the waters to be reca[»-
tured be new waters, artificially brought into the stream by the
labor of man, and not waters that would have reached the cha i-
nel naturally and have formed part of the natural flow anyway,
in the absence of such labor.® A very recent case well illustrates
the broad application of this principle.'^^ The stream for two and
one-half miles was a losing stream, diminishing nineteen per cent
by seepage and evaporation before reaching plaintiff. Defendant
saved this loss by providing a pipe-line to carry the stream over
those two and one-half miles, and also, in the bed of the cret^k
thus left dry, placed another pipe-line in which 25-50 inches o\^
water accumulated.''*

The court says that the defendant thus delivers to plaintiff below
all the water which plaintiff would get and be entitled to if the
stream continued to flow naturally; and the water in the pipers
in excess of the natural flow is new, rescued, developed, or salvage
water. The court lays stress upon the fact that the presence of the
new water is due entirely to the agency of .the defendants, and
holds that the amount thereof must be determined **with the
nicest exactness possible," and the right thereto then belongs to
defendant who rescued it. The court says (per Mr. Justice Hen-
shaw) :

"This principle has been enunciated by this (*ourt as early as
Butte Company v. Vaughn,''^ and has been reaffirmed, however

flo Field, J., in Spring Valley Wa- Ji No contention upon the use of

ter Works v. Schottler, 110 U. S. 347, riparian proprietors was made; and

28 L. e<l. 173, 4 Sup. Ct. Rep. 48. the parties all claimed to use the

70 Pomona W. Co. v. San Antonio water on non-riparian lands or under

W. C. (Cal. Sup., Jan. 17, 1908), 93 claims of appropriation.

Pac. 881. 72 11 Cal. 143, 70 Am. Dec. 769.

360

acter of thf
not be obt
taken thp
of proof
clearly
portior
his ri
quan*

THE'T A

/^<

(f^

. iFF^""

ipn

ri.ir^^'''

% 234

Jigs been presented.

'^' " _^ "^'C/-^ ^s entitled to the use
^i**** ^, «•/<

sam'
bee

"'** MA* ^"^ " /x">'^ ^® ™*^y ^^* complain

^tf^^'\hrf^^'^,^rMf*^Zf H'/iich does not impair the

, pr*^^"'\nit»^ '\ of ^^ ^. entitled, and, upon the other

/ '- £i^ ,r i^ '1j ^^^^^ ,,r excess of water over the amount

i^ *"''. or *f'' jiir ^^*^^ir i^J"*^ ^® produced. In the Vaughn

^""f '^ '^•* '^/V'^' ^^^fped upoi^ the prior use. In Creighton

^hi^^^'ti^^'^^^^^^ it is said: 'At best, the plain-

'^^ sff^'lffii^^^^^, Qfily to ^*^ve the defendant enjoined from

»• ^'^'jJ/ ^ ^^^^' / ^*** which would have naturally flowed un-

/,7f5f ^^Xf^^^^e9^' ^^^ which the plaintiff is not connected.'

^^Tby ^^"^^^ni^^^^^^ ^ * ^- ^^-'^^ ^^i® ^^^^® question is

^^*^\Vi^^^^ * Jered, and full recognition is accorded of the right

^^'hofB^^'^ ^ e ^^^ saves as well as to the one who develops it.

^ ^teT ^ ^^ that one hundred inches of water were naturally

It ^^^^ ^Tp^^^^ *°^ evaporation in passing through the natural

los^ ^' ^ffota ^^^ ^^^ ^^^ ditch of an upper riparian owner to the

eh»^f ^ iower owner. It was held that a court of equity in

\a^^ , the flow of the stream might allow the upper owner to

^ de artifi^i*^ means for carrying all the waters of the stream

P^ ^..^ of the one hundred inches to the land of the lower owner.

"^ , permit the upper owner to use so much of the one hundred in-

hes BS he could save by such artificial means, and, quoting from the

opinion^ it is said: 'The plaintiff could, under no circumstances,

l)e entitled to the use of more water than would reach his land by

the natural flow of the stream, and, if he receives this flow upon

the land, it is immaterial to him whether it is received by means

of the natural courses of the stream or by artificial means. On the

other hand, if the defendant is enabled by artificial means to give

to the plaintiff all of the water he is entitled to receive, no reason

call be assigned why it should not be permitted to divert from the

stream where it enters its land and preserve and utilize the one

hundred inches which would otherwise be lost by absorption.'

This same doctrine is recognized by all the courts which have been

'called upon to consider it."'''

73 67 Cal. 222, 7 Pac. 658.

T4 113 Cal. 195, 54 Am. St. Rep.
337, 45 Pac. 160 32 L. R. A. 667.

7B Platte Irr. Co. v. Imperial Co.,
25 Colo. 77, 53 Pac. 335; Herriman
Irr. Co. V. Butterfield Min. Co., 19

Utah, 453, 57 Pac. 541, 51 L. R. A.
930; Fambam on Waters, sec. 672.
Note that the Wiggins case was
decided with regard to riparian pro-
prietors at common law.

§9 235, 236 LOSS OF RIGHT. 363

The decisions concerning the diversion of ** storm waters" from
a riparian proprietor may possibly be rested on this groundJ®
The right to recapture seepage against a riparian owner (seepage
entering the stream from neighboring irrigated land) has been
denied.'"

§ 236. Parol Sale or Paiilty Deed.— Owing to the insistence
in the early days on the personal license side of possessory rights
on the public domain, a conveyance operated on the principle of
surrender and admittance, the grantor abandoning, and the
grantee receiving his right because of his newly acquired posses-
sion. A sale of a possessory right was an unequivocal sign of
intent to relinquish on the grantor's part, and hence was evi-
dence of an abandonment.'^®

§ 236. Failure of Diligence in Oonstmction Work. — An appro-
priator seeking the benefit of the doctrine of relation loses the
benefit of that doctrine if he fails to use diligence in building his
ditches and other construction work. But this is not a question
of abandonment. It Is matter precedent showing that no right
was ever obtained against the other claimant who has performed
the requisite formalities.®^ The two principles should be kept dis-
tinct. That this does not rest on abandonment is shown by the rule

76 Infra, sec. 322. ' 79 The cases are cited, supra, sec.

77 Southern Cal. Co. v. Wilshire, 228.

144 Cal. 69, at 73, 77 Pac. 767. 80 Nevada etc. Co. v. Kidd, 37 Cal.

78 Supra, sec. 228; Black v. Elk- 282.
horn Min. Co., 163 U. S. 445, 41 L.

ed. 221, 16 Sup. Ct. Kep. 1101/

362 THE LAW OF APPROPRIATION. $ 234

varying the forms may have been, whenever it has been presented.
The principle in brief is this : that where one is entitled to the use
of a given amount of water at a given point, he may not complain
of any prior use made of the water which does not impair the
quality or quantity to which he is entitled, and, upon the other
hand, he may not lay claim to any excess of water over the amount
to which he is entitled, however it jnay be produced. In the Vaughn
case, supra, the question turned upon the prior use. In Creighton
V. Kaweah Irrigating Company "^ it is said: 'At best, the plain-
tiffs would be entitled only to have the defendant enjoined from
obstructing the flow of that which would have naturally flowed un-
aided by artificial means, with which the plaintiff is not connected. '
In Wiggins v. Muscupiabe L. & W. Co.,*^* this whole question is
elaborately considered, and full recognition is accorded of the right
to water of one who saves as well as to the one who develops it.
It there appeared that one hundred inches of water were naturally
lost by absorption and evaporation in passing through the natural
channel from the dam and ditch of an upper riparian owner to the
land of a lower owner. It was held that a court of equity in
dividing the flow of the stream might allow the upper owner to
provide artificial means for carrying all the waters of the stream
in excess of the one hundred inches to the land of the lower owner,
and permit the upper owner to use so much of the one hundred in-
ches as he could save by such artificial means, and, quoting from the
opinion, it is said: 'The plaintiff could, under no circumstances,
be entitled to the use of more water than would reach his land by
the natural flow of the stream, and, if he receives this flow upon
the land, it is inunaterial to him whether it is received by means
of the natural course, of the stream or by artificial means. On the
other hand, if the defendant is enabled by artificial means to give
to the plaintiff all of the water he is entitled to receive, no reason
crfn be assigned why it should not be permitted to divert from the
stream where it enters its land and preserve and utilize the one
hundred inches which would otherwise be lost by absorption.'
This same doctrine is recognized by all the courts which have been
called upon to consider it. ' ' '"^

73 67 Cal. 222, 7 Pac. 658. Utah, 458, 57 Pac. 541, 51 L. R. A.

74 113 Cal. 195, 54 Am. St. Rep. 930; Farnham on Waters, 8ec. 672.
337, 45 Pac. 160, 32 L. R. A. 667. Note that the Wiggins case was

75 Platte Irr. Co. v. Imperial Co., decided with regard to riparian pro-
25 Colo. 77, 53 Pac. 335; Herriman prietors at common law.

Irr. Co. V. Butterfield Min. Co., 19

§§ 235, 236 LOSS OF RIGHT. 363

To-day, possessory rights have been so far raised into the dignity
of real estate that a sale vrill, if in writing so as to satisfy the
statute of frauds, operate as a transmission of title, like any other
conveyance, without loss of priority. But still the old view obtains
where the sale is by parol, or by faulty deed. Such a sale is not
inoperative. It constitutes an abandonment on the part of the
grantor, and the creation of a new right in the grantee as a new
appropriator by actual diversion. Priority is lost. Such a sale
does not operate as an abandonment, however, until completed
by putting the grantee in possession. The mere attempt to aban-
don (or an unsuccessful attempt at a parol sale) is not enough
without the actual relinquishment of possession.'"'

•

76 Infra, aec. 322. * T9 The cases are cited, supra, sec.

Tt Southern Cal. Co. v. Wilshire, 228.

144 Cal. 69, at 73 77 Pac. 767. 80 Nevada etc. Co. v. Kidd, 37 Cal.

T8 Supra, sec. 228; Black v. Elk- 282.
horn Min. Co., 163 U. S. 445, 41 L.
ed. 221, 16 Snp. Ct. Kep. 1101.

I
k

372

THE LAW OF APPROPBIATION.

9 242

allegation of ownership.*^ The continuance of the use is hence
no longer a cause of action as a continuing trespaas.^^ The title
once acquired is as complete as any other. *^^

The question of priority as concerns a right obtained by adverse
use has not arisen , but seems a point that may well give difficulty.
On the presumed grant theory, the newly-acquired right would
retain the priority of the original appropriation, as a grant in writ-
ing transmits the right without loss of priority.*^ But if that
fiction is laid aside, it would seem that the adverse use gives a right
only from the start of the adverse use, as a new appropriator by
actual diversion, as in the case of a parol sale.^^ It has been
said that the right obtained by adverse use dated only from the
first adverse diversion,^^ and that ** where a right rests upon the
statute of limitations, 'the disseisor acquires a new title founded
on the disseisin. He does not acquire or succeed to the title and
estate of the disseisee, but is vested with a new title and estate
founded on and springing from the disseisin. ' ' ' "^

§ 242. Extent. — The extent of the use during the prescrip-
tive period limits the right.^*^ Citing other authorities it is

133 Montecito etc. Co. v. Santa Bar-
bara, 144 Cal. 576, 594, 77 Pac. 1113.
Also to the effect that not only is the
remedj barred, but title actually
passes, Wutchumna etc. Go. v. Ba^le.
148 Cal. 759, 84 Pac. 162.

136 Patterson v. Ft. Lyon etc. Co.,
36 Colo. 175, 84 Pac. 807. But in
Henshaw v. Salt Biver etc. Co.
(Ariz.), 84 Pac. 908, an action was
allowed for a diversion after the pre-
scriptive period on the ground that it
was a continuing trespass and only
right of action for past diversion was
barred, which would nullify the rule
of adverse use entirely.

187 '<No principle of law is better
established than that, when title is
once acquired by adverse possession
for the statutory period, such title re-
mains in the person so acquiring it as
completely as if conveyed to him by
deed from the owner. (Citing Joy v.
Stump,* 14 Or. 361, 12 Pac. 929.)
Therefore, after the title by such pos-
session became complete, no interrup-
tions were of any avail to plaintiffs,
unless actual, open, exclusive, continu-
ous, and adverse, under claim of own-
ership for the statutory period."
Gardner v. Wright (Or.), 91 Pac. 286,

citing B. & C. Comp. Stats., sec. 4;
Pearson v. Dryden, 28 Or. 350, 43 Pac.
166; Oregon Con. Co. v. Allen Ditch
Co., 41 Or. 209, 93 Am. St. Rep. 701,
69 Pac. 455.

138 Supra, sees. 221-223.

139 Supra, sec. 228.

140 Lavery v. Arnold, 36 Or. 84, 57
Pac. 906, 58 Pac. 524; Oregon etc.
Co. V. Allen etc. Co., 41 Or. 209, 93
Am. St. Bep. 701, 69 Pac. 455.

141 Alhambra etc. Water Co. v.
Bichardson, 72 Cal. 598, 608, 14 Pac.
379.

142 Burris v. People's Ditch Co., 104
Cal. 248, 37 Pac. 922 ; Hall v. Carter,
33 Tex. Civ. App. 230, 77 8. W. 19;
North Fork Co. v. Edwards, 121 Cal.
662, 54 Pac. 69; Smith v. Hampshire,
4 Cal. App. 8, 87 Pac. 224; Knight v.
Cohen (Cal. App.), 93 Pac. 396;
(vbessroan v. Hale, 31 Mont. 577, 79
Pac. 256, 68 L. B. A. 4lO; Norman v.
Corbley, 32 Mont. 195, 79 Pac. 1059;
Smith V. Logan, 18 Nev. 140, 1 Pac.
678; Boynton v. Longley, 19 Nev. 69,
3 Am. St. Bep. 781. 6 Pac. 437;
Church v. Stillwell, 12 Colo. App. 43,
54 Pac. 395; White v. White, [1906]
App. Cas. 72 (Eng.).

§§ 235, 236 LOSS OF RIGHT. 363

The decisions concerning the diversion of ** storm waters'* from
a riparian proprietor may possibly be rested on this groundJ®
The right to recapture seepage against a riparian owner (seepage
entering the stream from neighboring irrigated land) has been
denied."

To-day, possessory rights have been so far raised into the dignity
of real estate that a sale will, if in writing so as to satisfy the
statute of frauds, operate as a transmission of title, like any other
conveyance, vnthout loss of priority. But still the old view obtains
where the sale is by parol, or by faulty deed. Such a sale is not
inoperative. It constitutes an abandonment on the part of the
grantor, and the creation of a new right in the grantee as a new
appropriator by actual diversion. Priority is lost. Such a sale
does not operate as an abandonment, however, until completed
by putting the grantee in possession. The mere attempt to aban-
don (or an unsuccessful attempt at a parol sale) is not enough
without the actual relinquishment of possession.*^

§ 236. Failure of Diligence in Oonstraction Work.— An appro-
priator seeking the benefit of the doctrine of relation loses the
benefit of that doctrine if he fails to use diligence in building his
ditches and other construction work. But this is not a question
of abandonment. It Is matter precedent showing that no right
was ever obtained against the other claimant who has performed
the requisite formalities.*^ The two principles should be kept dis-
tinct. That this does not rest on abandonment i*s shown by the rule

•

76 Infra, sec. 322. * 79 The cases are cited, supra, sec.

77 Southern Cal. Co. v. Wilshire, 228.

144 Cal. 69, at 73, 77 Pac. 767. 80 Nevada etc. Co. v. Kidd, 37 Cal.

78 Supra, sec. 228; Black v. Elk- 282.
horn Min. Co., 163 U. S. 445, 41 L.

ed. 221, 16 Slip. Ct. Kep. 1101.

360

acter of

not be

taken

of pr

clear

por^

his

ffff^

/.A ^

r or -^

F/'^^

^pBf-

J TIO^'-

9 234

/rC'

^ y/ haa been presented.

,e h^"' ^^^'^one is entitled to the use

forff'^'^fl^- ^''l^P^P^^^^* ^^ ™*y ^^* complain

fi'^''''^ 'Zl^ ''' f^'nter ^^ ' ^ter n'/iich does not impair the

^^ C^'^'^''"'!/^^^ '^ ^%e ''^ ^fltitted, and, upon the other

tht^

f »py f* ^Bti^y '" „i io»^^ " —

' ///» ^^ '' i M»' ^^^^ ^r /tJ"*y ^^ produced. In the Vaughn

to ^^^^%oy 6^^^^ ^^ water over the amount

,we^^''

hMi>^' ^^ '^^seoti^^' ^\iimed upon the prior use. In Creighton

/^••'^'^ii!'^A'^<''S>'"P««-^''' it is said: 'At best, the plain-

^j***^* ''^^'^''''^^^•^ifi only to have the defendant enjoined from

I', ^^^^jd ^ ^"^Vo/t^*^ which would have naturally flowed un-

ti^^ ^fipg t^^, luieans, with which the plaintiff is not connected.'

^!^ld^^y ^'^'\ltiseupisi^ L. & W. Co.,*^* this whole question is

''^ \Vif^^^^ ^idered, and full recognition is accorded of the right

ibof^^^^'f Que ^^^ saves as well as to the one who develops it.

^B^^ gf^ that one hundred inches of water were naturally

H th^^ hsorptio'* and evaporation in passing through the natural

\(fit ^'' %rom the dam and ditch of an upper riparian owner to the

ch»^^^f g lower owner. It was held that a court of equity in

laJ^^ . the flow of the stream might allow the upper owner to

^^ Ae artificial means for carrying all the waters of the stream

P*^ ceflS of the one hundred inches to the land of the lower owner,

^ d peTvA^ the upper owner to use so much of the one hundred in-

hes as he could save by such artificial means, and, quoting from the

opinion, it ifi said: 'The plaintiff could, under no circumstances,

1)6 entitled to the use of more water than would reach his land by

the natural flow of the stream, and, if he receives this flow upon

the land, it is immaterial to him whether it is received by means

of the natural course of the stream or by artificial means. On the

other hand, if the defendant is enabled by artificial means to give

to the plaintiff all of the water he is entitled to receive, no reason

caCn be assigned why it should not be permitted to divert from the

stream where it enters its land and preserve and utilize the one

hundred inches which would otherwise be lost by absorption.'

This same doctrine is recognized by all the courts which have been

'called upon to consider it."*"^

T8 67 Cal. 222, 7 Pac. 658.

T4 113 Cal. 195, 54 Am. St. Rep.
337, 45 Pac. 160 32 L. B. A. 667.

"^s Platte Irr. Co. v. Imperial Co.,
25 Colo. 77, 53 Pac. 335; Herriman
Irr. Co. V. Butterfield Min. Co., 19

Utah, 453, 57 Pac. 541, 51 L. R. A.
930; Farnham on Waters, sec. 672.
Note that the Wiggins case was
decided with regard to riparian pro-
prietors at common law.

§§ 235, 236 LOSS OF RIGHT. 363

§ 235. Parol Sale or Faulty Deed.— Owing to the insistence
in the early days on the personal license side of possessory rights
on the public domain, a conveyance operated on the principle of
surrender and admittance, the grantor abandoning, and the
grantee receiving his right because of his newly acquired posses-
sion. A sale of a possessory right was an unequivocal sign of
intent to relinquish on the grantor's part, and hence was evi-
dence of an abandonment!^®

§ 236. Failure of Diligence in Oonstruction Work. — An appro-
priator seeking the benefit of the doctrine of relation loses the
benefit of that doctrine if he fails to use diligence in building his
ditches and other construction work. But this is not a question
of abandonment. It Is matter precedent showing that no right
was ever obtained against the other claimant who has performed
the requisite formalities.®^ The two principles should be kept dis-
tinct. That this does not rest on abandonment fs shown by the rule

76 Infroy sec. 322. * '^^ The cases are cited, supra, see.

TT Southern Cal. Co. v. Wilshire, 228.

144 Cal. 69, at 73, 77 Pac. 767. 80 Nevada etc. Co. v. Kidd, 37 Cal.

T8 Supra, sec. 228; Black v. Elk- 282.
horn Min. Co., 163 U. S. 445, 41 L.
ed. 221, 16 Sup. Ct. Kep. 1101.

376

THE LAW OF APPROPRIATION.

9 246

out of defendant's (claimant's) ditch is sufficient interruption,
though he turned it back again when plaintiff left.^'^^ An annual
interruption prevents adverse use."* Secret interruption by stealth
does not stop the running of adverse use.*"

It hap been held that the word ''uninterrupted" comprehends
** continuous,""® and that ** uninterrupted" is synonymous with
''peaceable" so far as necessary in pleading prescriptive title.*^

A suit by a third person against the adverse claimant does not
affect 'or interrupt his adverse use as against a stranger to such

8Uit.»«>

§ 246. Open; Notorious.— These terms, "open" and "notor-
ious," probably represent the same thing* in this connection. The
use must be open and ''not dam," or clandestine, hidden or con*
cealed.*®* This will hence be an important obstacle to claims to
percolating water by adverse use.*®*

Since the rules of adverse use are punitive, to induce watchful-
ness, the better view se^ns to be that it is sufficient if the adverse
use was open and without attempt at concealment,*®® but a further
restriction is sometimes held, requiring notice of the use to be
brought home to the owner.*®* Knowledge by the owner of wrong-

"5 Authors V. Bryant, 22 Nev. 242,
38 Pac. 439. See, also, Wasateh etc.
Co. v. Fulton, 25 Utah, 466, 65 Pac.
205.

176 Bree v. Wheeler, 4 Cal. App.
109, 87 Pac. 255.

"T Brittain v. Conn (Or.), 91 Pac.
458.

"8 Collins V. Gray, 3 Cal. App. 723,
86 Pac. 983.

179 Montecito etc. Co. v. Santa Bar-
bara, 144 CaL 578, 77 Pac. 1113, com-
menting on Cave v. Crafts, 53 Cal.
135, and saying: ''It is true that in
Cave V. Crafts, 53 Cal. 135, it is said
that the adverse use must be peace-
able. But tfiat means no more, as the
opinion itself explains, quoting Wood
on Nuisances, than that it must be un-
interrupted. Says Wood: 'The use
must also be open and as of right, and
also peaceable, for if there is any act
done by other owners that operates as
an interruption, however slight, it pre-
vents the acquisition of the right by
such use.' If the possession has

been uninterrupted, of necessity it has
been peaceable. If it had been in-
terrupted, of necessity it has not
been peaceable. The words are there-
fore interchangeable and synonymous
in the pleading of prescriptive title."

180 Montecito etc. Co. v. Santa
Barbara, 144 CaL 578, 77 Pac. 1113.

181 Abbott V. Pond, 142 Cal. 393,

76 Pac. 60; Montecito etc. Co. v.
Santa Barbara, 144 Cal. 578, at 597,

77 Pac. 1113; Anaheim W. Co. v.
Ashcroft, Cal. Sup., Feb. 29, 1908
(use by a pump) ; Cal. Code Civ. Proc.,
sees. 322, 324; Hume v. Rogue Riv. Co.
(Or.), 92 Pac. 1072; Curtis v. La
Grande Co., 20 Or. 34, 23 Pac. 808.
25 Pac. 378, 10 L..B. A. 484.

182 But see Montecito W. Co. v.
Santa Barbara, 144 Cal. 578, 77 Pac.
1113.

188 Qurnsey' v. Antelope etc. Co,
(Cal. App.), 92 Pac. 326.

184 Churchill v. Louie, 135 Cal. 608,
67 Pac. 1052; Britt v. Reed, 42 Of.
76, 70 Pac. 1029; Clark v. Ashley, 24
Colo. 285, 82 Pac. 588.

§ 247

LOSS OF RIGHT.

377

ful use of pipes underground must be brought home to him.*®'
Between tenants in common, notice is held necessary.*®^ Notice
to an ofScer of a corporation is notice to the corporation in this
respect.*®^ It has been held that no adverse user can be initiated
until the owners of the superior right are deprived of the benefit
of its use in such a substantial manner as to notify them that their
rights are being invaded.*®®

§ 247. Claim of Right— Oolor of Title.— The occupation nfiust
be under a claim of right by the adverse claimant, or as it
is sometimes put, under color of title.*®® A patent from the gov-
ernment to land through which water flows or percolates does
not give color of title to the water under the Colorado doctrine
of the effect of land patents on water rights.*®^ Claim of right
is negatived by proof of an offer to purchase or rent.*®* In
Oregon on a question of adverse use it has been held that
it will be presumed that the use was under claim of right after
death of the person initiating the use.*®^ A use under a void
deed as though the deed were good is adverse to the grantor,
though not necessarily adverse to the right of strangers to the
deed,*®^ because it is a claim against the grantor and those in
privity with him only. The claim is sufficient if by visible acts,
and assertions by word of mouth are unnecessary.*®^

To give color of title, the adverse claimant may have begun
his use in any character whatsoever, but if he began it in the
character of an appropriator, pretending to have a valid appro-
priation, he must have made his adverse use a use for a beneficial

186 Gray v. Cambridge, 189 Mass.
405, 76 N. E. 195, 2 L. R. A., N. 8.,
977.

186 Smith V. North etc. Co., 16
Utah, 194, 52 Pac. 283; Beers v.
Sharpe, 44 Or. 386, 75 Pac. 717.

• 187 Montecito etc. Co. v, Santa Bar-
bara, 144 Cal. 578, 77 Pac. 1113.

188 Wimer v. Simmons, 27 Or. 1, 50
Am. St. Bep. 685, 39 Pac. 6; North
Powder Co. v. Coughanour, 34 Or. 9,
54 Pac. 223; Bowman v. Bowman, 35
Or. 279, 57 Pac. 546; Boyce v. Cup-
per, 37 Or. 256, 61 Pac 642; Watts
T. Spencer (Or.), 94 Pac. 39.

180 Montecito etc. Co. v. Santa Bar-
bara, 144 Cal. 578, 77 Pac. 1113; V7in-
ter V. Winter, 8 Nev. 129 ; Brossard v.

Morgaii, 7 Idaho, 215, 61 Pac 1031;
Ce&ter Creek etc. Co. v. Lindsay, 21
Utah, 192, 60 Pac. 559; American etc.
Co, V. Bradford, 27 Cal. 360.

190 Clark v. Ashley, 34 Colo. 285, 82
Pac. 588.

i»i Jensen v. Hunter (Cal.), 41
Pac 17.

182 Bauers v. Bull, .46 Or. 60, 78
Pac. 757.

108 Rose y. Mesmer, 142 Cal. 322, 75
Pac. 905; Cal. Code Civ. Proc, sees.
322, 323, but see Knight v. Cohen
(Cal. App.), 93 Pac. 396.

iM Gumsey v. Antelope etc. Co.
(Cal. App.), 92 Pac 326; Knight v.
Cohen (Cal. App.), 93 Pac. 396.

378

THE LAW OF APPROPRIATION.

§ 247

purpose. Since a right of appropriation cannot be held without
beneficial use, one pretending to be an appropriator has no color
of title without beneficial use. It is 'consequently held that the
adverse use must be for a beneficial purpose ; ^^ though the bene-
ficial use need not be made immediately, a reasonable time being al-
lowed, as in making the appropriation.^^ Rental and sale is a
beneficial use.^^

While the above decisions requiring beneficial use on the part
of the adverse claimant used general language applying to all,
yet the rule would seem not to apply to an adverse claimant not pre-
tending to be an appropriator, and is hence doubted as applying
to adverse claimants in other character.*®® For example, a riparian
proprietor (in jurisdiction recognizing riparian rights) need not
make beneficial use of the water to give color of title, and there
would be no reason why one claiming adversely in that character
need use the water beneficially.***

An adverse claimant in the character of an appropriator has, at
the same time, color of title without posting a notice of appropria-
tion, since his actual diversion is sufficient color of title as appro-
priator by actual diversion.^^ Hence, posting a notice, while
valuable evidence, is not necessary to support a right by adverse
ygg 201 Tiig place of use is also immaterial.^^

Satisfactory proof of a continuous, open, notorious and uninter-
rupted use of the waters for the statutory period, and of such a
character as to unquestionably indicate that the use was being ex-
ercised in hostility to the right of any person to interfere with its
exercise is sufficient proof that they claimed a right to use it.^^

195 Alta etc. Co. v. Hancock, 85 Cal.
219, 20 Am. St. Rep. 217, 24 Pac.
645 ; Senior v. Anderson, 130 Cal. 290,
at 297, 62 Pac. 563; Lavery v. Arnold,
36 Or. 84, 67 Pac. 907; Oregon etc.
Co. V. Allen, 41 Or. 209, 69 Pac. 455,
see 93 Am. St. Rep. 701, note.

iw Oregon etc. Co. v. Allen etc. Co.,
41 Or. 209, 93 Am. St. Rep. 701, 69
Pac. 455.

i©7 Montecito etc. Co. v. Santa Bar-
bara, 144 Cal. 578, 77 Pac. 1113.

108 93 Am. St. Rep. 720, note.

i«» A superior court decision in
California somewhat to this effect was
rendered by Judge J. M. Sea well, sit-

ting in Madera County, in the case of
California Pastoral Co. v. Madera
Canal Co., 1906.

200 Supra, sec. 109.

201 Alta etc. Co. v. Hancock, 85 Cal.
219, 20 Am. St. Rep. 217, 24 Pac. 645;
Frederick v. Dickey, 91 Cal. 360, 27
Pac. 742.

202 Southern Cal. etc. Co. v. Wil-
shire, 144 Cal. 68, 77 Pac. 767; Meng
V. Coffey, 67 ISeb. 500, 108 Am. St.
Rep. 697, 93 N. W. 715, 60 L. R. A.
910.

208 Anaheim W. Co. v. Ashcroft,
Cal. Sup., Feb. 29, 1908.

§( 248, 249

LOSS OF RIGHT.

379

§ 248. Hostile to Owner— Permisaion.— The use must be hostile
to the owner ;^ hence permissive use is not adverse. If there is
permission, the use, however long continued, cannot ripen into a
right by prescription.^*^^

Who has the burden of proof where permission is set up ? Upon
the ultimate issue of adverse use the adverse claimant has the bur-
den of proof ; ^^ but it is held that use otherwise falling within
the requirements will make a prima fcLcie title by adverse use,
and will raise a presumption that the use was not permissive;
thereby putting upon the party asserting that there was permis-
sion, the burden of proving it. It is said in one case : ^w * < Where
an open and uninterrupted use of an easement for a sufficient length
of time to create the presumption of a grant is shown, if the other
party relies on the fact that these acts or any part of them were
permissive, it is incumbent on such party, by sufficient proof, to
rebut such presumption of a non-appearing grant; otherwise the
presumption stands as sufficient proof, and establishes the right. ' ' ^^

The case quoted in the foregoing note would, however, also apply
the rule to any element in opposition to the adverse right, thus put-
ting upon owners the duty of disproving adverse claims instead of
requiring the trespasser to ''make good." It has been said
that ''a man's title to land should count for something in con-
troversies of this character. " ^^ *

§ 249. Invasion- of Right— Chance to Prevent. — The use must
** substantially interfere'* with the property of the owner ;2^^ there
must be an actual invasion of his property.^^^

204 Hayes v. Martin, 45 Cal. 563;
McManus v. O'SuUivan, 48 Cal. 7;
Francoeur v. Newhouse, 43 Fed. 238.

205 BaU V. Kehl, 95 Cal. 606, 30
Pac. 780; Jensen v. Hunter (Cal.), 41
Pac. 17; Jobling v. Tuttle, 75 Kan.
351, 89 Pac. 699; Yeager v. Wood-
niflf, 17 Utah, 361, 53 Pac. 1045; Hall
V. Blackman, 8 Idaho, 272, 68 Pac. 19;
Anderson v. Bassman, 140 Fed. 25;
Knight V. Cohen, 93 Pac. 396; Watts
V. Spencer (.Or.), 94 Pac. 39.

206 Supra, spec. 240.

207 Fleming v. Howard, 150 Cal. 28,
87 Pac. 908.

208 Accord Gumsey v. Antelope Co.
(Cal. App.), 92 Pac. 326; Knight
V. Cohen (Cal. App.), 93 Pac. 396.

''While an adverse right cannot
grow out of mere permissive enjoy-

ment, the burden of proving possession
thus claimed to have been held by such
permission or subserviency is cast
upon the party attempting to defeat
such claim." Gardner v. Wright
(On), 91 Pac. 286, citing Coventon
V. Seufert, 23 Or. 548, 32 Pac. 508;
Rowland v. Williams, 23 Or. 515, 32
Pac. 402; Bauers v. Bull, 46 Or. 60,
78 Pac. 757; Horbach v. Boyd, 64
Neb. 129, 89 N. W. 644.

209 Jensen v. Hunter (Cal.), 41 Pac.
17. Not officially reported.

210 Gardner v. Wright (Or.), 91
Pac. 286.

211 American etc. Co. v. Bradford,
27 Cal. 360 ; Oneto v. Restano, 78 Cal.
374, 20 Pac. 743 ; Paige v. Bocky Ford
etc. Co., 83 Cal. 84, 21 Pac. 1102, 23
Pac. 875.

380

THE LAW OF APPROPRIATION.

§ 249

This does not mean that actual damage as measured in money
need be occasioned by the adverse claimant, however, since a right
of property is invaded by any acts inconsistent with it {injuria sine
damno), and the use may be adverse, irrespective of the amount of
damage, however small that may be (''nominal damage"); even
if there is no actual money damage at all.*^^

Between tenants in common, before possession of one, or a sale
by him, becomes adverse to the others, there must be an actual ouster
and notice or knowledge of the adverse intention.^"^

There can be no adverse use by lower claimants against those
above, since a use below can ih no way interfere with the flow
above ; it is no possible invasion of the right of the upper owner .^*
liower use is not adverse.**' Nor is the use of a surplus above
the appropriator adverse to him, since it leaves the amount to which
he is entitled uninvaded.*** No right by adverse use can hence
result from use below, or from use of surplus above.**^'

There can be no adverse use, for the same reason, where during
the prescriptive period, there has been water enough for all uscets.'**
{QtMere, whether this applies to adverse use againnt a riparian
proprietor, the invasion of whose right does not depend upon the
fact that he has enough for his present use.) ''A mere scrambling
possession of the water or the obtaining of it by force or fraud **•

212 Creighton v. Evaiis, 53 Gal. 55;
Moore v. Clear etc. Works,. 68 Cal. 146,
8 Pac. 816; Stanford v. Felt, 71 Cal.
249, 16 Pac. 900; Heilbron v. Fowler
etc. Canal Co., 75 Cal. 426, 7 Am. St.
Rep. 183, 17 Pac. 535; Conkling v.
Pacific etc. Co., 87 Cal. 296, 25 Pac.
399; vValker v. Emerson, 89 Cal. 456,
26 Pac. 968; Spargur v. Hurd, 90 Cal.
221, 27 Pac. 198; Mott v. Ewing, 90
Cal. 231, 27 Pac. 194. See supra, sec.
198 et seq. *

213 Smith V. North Canyon etc. Co.,
16 Utah, 194, 52 Pac. 283; Beers v.
Sharpe, 44 Or. 386, 75 Pac. 717.

214 Bathgate v. Irvine, 126 Cal.
135, 77 Am. St. Rep. 158, 58 Pac.
442; Cave v. Tyler, 133 Cal. 566, 65
Pac. 1089.

216 Harrington v. Demarris, 46 Or.
Ill, 77 Pac. 605, 82 Pac. 14, 1 L. R.
A., N. S., 756; North Powder Co. v.
Coughanour, 34 Or. 9, 54 Pac. 223;

Bowman v. Bowman, 35 Or. 279, 57
Pac. 546; Beers v. Sharpe, 44 Or. 386,
75 Pac. 719; Wimer v. Simmons, 27
Or. 1, 50 Am. St. Bep. 685, 39 Pac. 6.

216 Fifield V. Spring Valley etc.
Works, 130 Cal. 552, 62 Pac. 1054 ;
Faulkner v. Bondoni, 104 OaL 140, 37
Pac. 883.

217 See, also, 93 Am. St. Bep. 717,
note; Talbott v. Butte etc. Co., 29
Mont. 17, 73 Pac. Ill; Norman v.
Corbley, 32 Mont. 195, 7Q Pac. 1059,

218 Jobling V. Tuttle, 75 Kan. 351,
89 Pac. 699; Egan v. Estrada, 6 Ariz.
248, 56 Pac. 721; Meng v. Coffey, 67
Neb. 500, 108 Am. St. Rep. 697, 93 N.
W. 713, 60 L. R. A. 910; Watts v.
Spencer (Or.), 94 Pac 39; Anaheim
W. Co. V. Semi-Tropic Co., 64 Oal.
185, 192, 30 Pac. 623; Last Chance Co.
V. Heilbron, 86 <.al. 20, 26 Pac 523.

2i» 8ed qu.

§§ 250, 251

LOSS OF RIGHT.

381

gives no prescriptive right ; nor can this right be acquired if, dur-
ing the time in which such right is claimed to have accrued, there
has been an abundant supply of water in the stream or river for
other claimants.** ^^ In Morris v. Bean ^^ it is said that the aid
of the statute of limitations has occasionally been invoked with
success, but not in cases of a scrambling possession, and the burden
is upon the adverse claimant to bring himself within the statute,
and the proof must be clear before a prescriptive right will be en-
forced.

§ 260. Some. — There must be a chance for the true owner to

prevent the use by the claimant, either by physical force or legal

proceedings.^^ **In order to obtain a right by prescription

. it 'i8 necessary that during the prescriptive period an action

could have been maintained by the party against whom the claim

is made.*'^^ Hence, another reason why there can be no right

by adverse use from use below, or of the surplus above, the
appropriator.224

As there was no right of action for loss of percolating water
under the old rule, no right to it could be acquired by adverse use,
under the old rule.^^ No prescriptive right could be had, since no
action would lie against the adverse claimant to recover the water
• during the prescriptive period.^^ Possibly, under the new rule giv-
ing a right of action in some cases, a prescriptive right might, per-
haps, arise,^^

§ 251. Pajrment of Taxes. — Statutes usually require the claim-
ant to real estate by adverse use to have paid the taxes thereon
during the prescriptive period.*^ This applies also to water rights,
as they are real estate.^^ In construing this rule, the adverse

220 Union etc. Co. v. Dangberg, 81
Fed. 73.

221 (Mont.), 146 Fed. 433.

222 Hanson v. McGile, 42 Cal. 303,
10 Am. Bep. 299; Montecito etc. v.
Santa Barbara, 144 Cal. 578, at 597,
77 Pac. 1113; but see Alhambra etc.
Water Co. v. Richardson, 72 Cal. 598,
14 Pac. 379; Fogarty v. Fogarty, 129
Cal. 46, 61 Pac. 570.

223 Chessman v. Hale, 31 Mont. 577,
79 Pac. 256, 68 L. R. A. 410.

224 Supra, sec. 249.

225 Hanson v. McCue, 42 Cal. 303,
10 Am. Rep. 299.

228 Crescent etc. Co. v. Silver etc.
Co., 17 Utah, 444, 70 Am. St. Rep.
810, 54 Pac. 244.

227 Katz V. Walkinshaw, 141 Cal.
116, 99 Am. St. Rep. 35, 70 Pac. 663,
74 Pac. 766, 64 L. R. A. 236. See
infra,

228 E. g., Cal. Code Civ. Proc, sec.
325; Colo. M. A. S., sec. 2923; Ariz.
Rev. Stats. 1901, sec. 2935 ^t seq.

229 Frederick v. Dickey, 91 Cal. 358,
27 Pac. 742.

AS2

THE LAW OF APPROPRIATION.

$9 252, 253

claimant is favored. If do taxes were assessed, the rule is inopera-
tive.^^ The burden of proof that taxes were assessed, and also that
they were not paid» is not on the adverse claimant, but on the
owner.^^ If the claimant used the water upon other land owned
by him, and paid the taxes assessed upon that land generally, that
fulfills the requisite, though there was no separate or specific
payment of taxes for the water, there having been no separate
assessment thereof.-^

§ 252. Against the United States. — There can be no adverse
use against the United States, and hence if the title to the water
was in the government any part of the five years, no prescriptive
right can arise.-^"* And, also, consequently, the acquisition of a
right by appropriation and one by adverse use stand on entirely
different footings.'-^ This, however, has reference only to the
point of diversion or to the land through which the stream runs, and
has no reference to the place of the adverse use. Title to the place
of use is immaterial, and the use may be made upon public land
and neverthelesa be adverse to private rights in the water.^^

§ 263. Oonclusioii. — In one case it is said that a man's title
should count for something in controversies of this character ; ^^
and in another, **Prom these observations it will be seen that it is
difficult to obtain a prescriptive right to the use of water under our
law as it now stands." This remark was made by the Idaho
court,^^ after setting forth requirements similar to those given
above; and the result in the many cases where a right by adverse
use was contended for substantiates this conclusion.

:J30 Heilbron v. Last Chance Water
etc. Co., 75 Cak 117, 17 Pac. 65;
Oneto V. Restano, 7a Cal. 374, 20 Pac.
743; Hesj^ria etc. Co. v. Rogers; 83
(^al. 10, 17 Am. St. Rep. 202, 23 Pac.
196.

-•ai Ibid.

-sxi (\)nraat v. Hill, 79 Cal. 587, 21
Pac. 1099.

233 Mathews v. Ferrea, 45 Cal. 51;
Wilkins v. Mc(^ie, 46 Cal. 656; Jatiinn
V. Smith, 95 Cal. 154, 30 Pac. 200;
Smith V. Hawkins, 110 Cal. 122, 4:1

Pac. 453 ; Vansickle v. Haines, 7 Nev.
249; Wattier v. Miller, 11 Or. 329, 8
Pac. 354.

234 Supra, p. 156.

235 Southern Cal. etc. Co. v. Wil-
shire, 144 Cal. 68, 77 Pac. 767 ; Meng
V. Coffey, 67 Neb. 500, 108 Am. St.
Rep. 697, 93 N. W. 715, 60 lu. R. A.
910.

2:*6 Jensen v. Hunter (Cal.), 41
Pac. 17.

2:^7 Hall V. Blackman, 8 Idaho, 272,
68 Pac. 19.

§ 254 LOSS OF RIGHT. 383

D. ESTOPPEL.

§ 264. Elements of Estoppel in Pais. — The elements requisite
for estoppel are substantially those necessary to found -in action
for deceit, with the exception of the ^ement of knowledge of
falsity. In deceit there must be some statement, or conduct im-
plying a statement, which is untrue, intending the other party
to act and he does act thereon, damage, and knowledge by the party
making the statement that it is untrue. The omission of the last
element from estoppel is the only substantial difference. This is
set forth In the following passage from Lux v. Haggin: *^ ** There
are estoppels in pais, ?s where a defendant is induced to act by the
declarations or conduct of a plaintiff, which are a defense both at
law and equity. Here we cannot discover the elements of such an
estoppel. The defendant has acted with full knowledge of all the
facts, and, as must be presumed, with full knowledge of the law
controlling the rights of the parties. To constitute the estoppel
the party claiming the benefit of it must be destitute of knowledge
of his own legal rights, and of the means of acquiring such knowl-
edge. To constitute such an estoppel it must also be shown that the
person sought to be estopped has made an admission or 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 jto 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. In the case
before us the fact relied on as proving the estoppel is that plain-
tiff had knowledge of the expensive canals and other works of
defendant while they were in progress, and did not object to them.
The bare fact that ditches, etc., were constructed with the knowl-
edge of the plaintiffs, though at great expense, without objection by
plaintiffs is not sufficient to constitute (such) an estoppel.''

The fact that a subsequent appropTiator employed the prior ap-
propriator (plaintiff) in the construction of its works does not
alone raise an estoppel against plaintiff,^^ though it is otherwise
where plaintiff gave his actual consent to the works.^^ In Brown v.

238 69 Cal. 255, 10 Pac. 674. 240 Ohurchill v. Banmann. 104 Cal.

239 Brown v. Gold Coin Min. Co. 3G9, 36 Pac. 93, 38 Pac. 43.
(Or.), 86 Pac. 363.

384

THE LAW OF APPROPRIATION.

S 255

Mining Co.^^^ it was said: **The evidence shows that the plaintiff
was employed by the defendant about its mill ; that he knew it was
being constructed to reduce ores and made no objection to the erec-
tion thereof. Such tacit acquiescence, however, is not sufficient to
create an equitable estoppel.^*^ To produce such an impediment,
the evidence must conclusively show that money has been expended
or labor performed in making permanent and valuable improve-
ments upon real property pursuant to an agreement of the parties,
in relation to the exercise of some right over an easement in the
lands of another, or some joint participation of the parties in the
enterprise from which a license to do the particular act relied
upon may reasonably be inferred. "^^

Where a water company served written notice of its claim, this
prevents any estoppel in favor of the persons so served by reason
of any subsequent expenditures by them.^**

The question is often confused with consklerations of laches
and acquiescence as barring an injunction — an entirely different
matter.2«

§ 266. Estoppel by Silence. — A person entitled to the use of
tvater is not deprived thereof by estoppel on merely seeing another
constructing a ditch or other works and making no objection thereto
until the diversion is completed.^*® Merely standing by while a
wrongdoer incurs expense with a view to consummate His plans
creates no estoppel.^*'' The principle is the same as that set forth

241 Supra.

242 Citing Lavery v. Arnold, 36 Or.
84, 57 Pac. 906, 58 Pae. 524 ; Hallock
V. Suitor, 37 Or. 9, 60 Pac. 384; Ew-
ing V. Bhea, 37 Or. 583, 82 Am. St.
Bep. 783, 62 Pac. 790, 52 L. R. A.
140; Bolter v. Garrett, 44 Or. 304, 75
Pac. 142.

243 Citing Garrett v. Bishop, 27 Or.
349, 41 Pac. 10; North Powder Co. v.
Coughanour, 34 Or. 9, 54 Pae. 223;
McPhee v. Kelsey, 44 Or. 193, 74 Pac.
401, 75 Pac. 713.

244 Duckworth v. WatsonviUe etc.
Co., 150 Cal. 520, 89 Pac. 338.

245 Supra, aec. 200.

246 Bolter V. Garrett, 44 Or. 304, 76
Pac. 143; Lavery v. Arnold, 36 Or. 84,
57 Pac. 906, 58 Pac. 524; Garrett v.
Bishop, 27 Or. 349, 41 Pac. 10; Hal-
lock V. Suitor, 37 Or. 9, 60 Pac. 384;
Ewing V. Bhea, 37 Or. 583, 62 Pae.

790; Brown v. Gold Coin Min. Co.
(Or.), 86 Pftc. 363.

247 Smyth V. Neal, 31 Or. 105, 49
Pac. 860; Bolter v. Garrett, 44 Or.
304, 75 Pac. 142; Orient etc. Co. v.
Freckleton etc. Co., 27 Utah, 125, 74
Pac. 662; McOann v. Wallace, 117
Fed. 936; Anaheim Co. v. Semi-Tropie
Co., 64 Cai: 185, 194, 30 Pac. 623;
Lux V. Haggin, 69 Cal. 255, 10 Pac.
674; Hargrave ▼. Cook, 108 CaL 72,
41 Pftc. 18, 30 L. B. A. 390; Bathgate
V. Irvine, 126 Cal. 136, 77 Am. St.
Bep. 158, 58 Pac. 442; Miller & Lux
V. Madera etc. Co., Cal. Sup., Oct. 2,
1907; Carson v. Hayes, 39 Or. 97, 65
Pac. 814; HiU v. Standard Min. Co.,
12 Idaho, 223, 85 Pac. 912 ; Trambley
V. Luterman, 6 N. Mex. 26, 27 Pac.
312; Durga v. Lincoln etc. Co.
(Wash.), 92 Pac. 343. See 93 Am.
St. Bep. 71, note.

S 265 LOSS OF RIGHT. 385

in regard to the use of waste water coming from a ditch, and the
authorities there cited are also in point.^*® Lower 'or upper rights
in the natural stream may arise by appropriation ; or upper rights
by adverse use ; but standing by while others use the water, having
lieither such right, does not alone work an estoppel in their favor.
If one has no right by appropriation or adverse use the mere si-
lence of others gives him none by estoppel.

Estoppels may arise where the necessary facts are present, but
the claim is usually based on silence, standing by, and similar
omission to act while another is incurring expense in arranging hos-
tile plans. '^It is safe to say that few cases of this character
have been tried where the defense of estoppel has not been inter-
posed with result uniformly unsuccessful. The estoppel argued for
here is that the parties now seeking to assert their rights ought not
to be allowed to do so, because they knew that the defendants
were building up their improvements, and relying upon the use
of the water to maintain them. An all-sufficient answer to this is
that the defendants knew also that the complainant and intervener
were relying upon the same water to maintain their improvements
already made, and to carry on their farming operations already

begun. Under this view pf it the one side is as much estopped
as the other. " 24»

The fact that one who had filed a homestead entry on land made
no objection to the construction of a ditch thereon by an irrigation
company until after he had obtained his patent did not estop him
from asserting that his patent was not subject to the company's
rights, in view of the statute providing that all conveyances of any
interest in, and contracts creating any encumbrances on real estate,
shall be by deed.^"^

An Oregon case (and there are many such decisions in this State
already cited) says:^* **It is said that plaintiffs made no objec-
tions to the expenditures of large sums of money by the defend-
ants in opening up and developing their mines in the construction
of hydraulic works and reservoirs for the operation thereof . But
the mere silence of the plaintiffs is not sufficient to estop them
from now asserting their rights because of such expenditures by the

248 Supra, see. 156 et seq. 26i Carson v. Hayes, 39 Or. 97, 65

M» Morris v. Bean, 146 Fed. 434. Pac. 814, 817.

260 Atkinson v. Washington Irr.
Co. (Wash.), 86 Pac. 1123.

Water Bights — 25

386 THE LAW OF APPROPRIATION. S 255

defendant. They were not acting under any license or agreement
with the plaintiffs, but upon their own responsibility ; and the plain-
tiffs had a right to assume that they did not intend, by their opera-
tion of their mine, to interfere with any of their rights." A lead-
ing California case,^^ referring to an instruction **That if those
from and through whom the plaintiffis claim had the prior right
to the waters, and they stood by and saw those from whom the de-
fendant derives his title to the ditoh, and the right to the waters
of the creek, appropriate the water of the creek, at great expendi-
ture of money and labor, under the mistaken idea that the defend-
ant's vendors were obtaining the first appropriation, and did not
inform them of the mistake, they, plaintiff's vendors, and the plain-
tiffs who claim under them, are estopped from setting up their prior
right at this time," says: ''In the light of the subsequent decisions,
it can scarcely be claimed that the facts recited in t}ie instruction
constituted an equitable estoppel which could be relied on as a de-
fense at law. It may be that the defendant had the better right.
In fact, the defendant's grantors seem to have appropriated the
water before the plaintiff's grantors even 'located' the mining claim.
It does not appear that the plaintiff's predecessors ever took actual
possession of the mining claim; and even if the location of the
claim preceded the defendant's appropriation, it does not appear
that tiie manner of the location was such as that defendant's
grantors were bound to take notice of it. But, whatever the facts,
we cannot assept to the proposition — apparently recognized by the
court — that the mere silence of plaintiff's grantors, disconnected
from other circumstances in evidence, created an estoppel at law."
In a more recent case ^^ the facts were stated, such as that while
defendants were sinking wells, erecting pumps, and laying pipes,
plaintiff had no information from them or from other source, as to
the amount of water to be pumped, and so did not serve any notice
that defendants incurred expense at their own peril, and similar
facts; and after stating these facts, Mr. Justice Shaw said: "The
facts stated are not sufficient to create estoppels agliinst the plain-
tiffs. It does not appear that either Verdugo or Ross was induced
to put down his well by any act, word or tacit encouragement of
the plaintiffs, or either of them, or relied upon their silence as

252 Lux V. Haggin, 69 Cal. 256, at «» Verdugo Canyon W. Co. v. Ver-

278, 10 Pac. 674. dago (Cal. Sap., Jan. 23, 1908), 93

Pac. 1021.

§ 255 LOSS OF BIGHT. 387

evidence of his own right, or of their consent. Nor does it appear
that plaintifb intended that either should act in reliance upon their
silence, or expected that either would do so. It is not shown that
plaintiffs were under any -duty toward either to disclose any claim
they might have to the water, nor that said defendants did not
know, at least as well as the plaintiffs knew, that the pumping of
the respective wells would decrease the west side stream, and the
underflow at the dam. The party estopped must always intend, or
at least must be so situated that he should be held to have expected,
thatThe other party shall act, and the other party must, by the
words, conduct or silence of the first party, be induced or led to do
what he would not otherwise do.^** The mere fact that the defend-
ants expended money in sinking the wells and putting in the .
pumps each upon his own land, with the knowledge of the plaintiffs
and without objection by them, creates no estoppeL^^ .... A
mere passive acquiescence where one is under no duty to speak
does not raise an estoppel. ' ' *"•

254 Citing Carpy v. DowdeU, 115 Stockman v. Riverside L. k I. Co., 64

CaL 677, 47 Pac. 695; Swain v. Sea- Cal. 59, 28 Pac. 116; Leonard t.

mans, 9 Wall. 274, 19 L. ed. 560; Flynn, 89 Cal. 542, 23 Am. St. Bep.

Dickerson y. Colegrove, 100 U. S. 580, 500, 26 Pftc. 1097.

25 L. ed. 618. 260 Citing Lux v. Haggin, 69 Cal.

260 Citing Kelly v. Taylor, 23 Cal. 270, 10 Pac. 674; Boehdale Co. v.

15; Maye v. Yappan, 23 Cal. 308; King, 2 Sim., N. S., 89.

388 THE LAW OP APPBOPRIATIOX. { 256

CHAPTER XV.

LOSS OF RIGHT (CONTINUED) —EMINENT DOMAIN.

S 256. Necessity for public use.

S 257. Necessity for hearing and compensation.

. S 258. What is a public use.

S 259. Private enterprise as public use.

§ 260. Clark ▼. Nash.

S 261. Same.

§ 262. In CaUfornia.

§ 263. Statement of the rule of Clark v. Nash.

$ 264. Procedure.

S 265. A question of procedure.

§ 256. Necessity for Public Use. — In all the States there are
constitutional provisions declaring that private property cannot
be taken from its owner without due process of law, which inhibits
taking a man's property from him for uses that are in no way
public uses. The constitution of the United States so provides, as
concerns Congress, in Amendment V, — ^'^No person shall be ... .
nor be deprived of life, liberty or property without due process of
law," ^ and likewise so provides as concerns States, in Amendment
XIV, — **Nor shall any State deprive any person of life, liberty or
property, without due process of law." For a State to authorize
the taking of private property for purposes in no way public would
be unconstitutional in any State. '^This is necessarily so, because
private property without the owner's consent cannot be taken for
the private use of another without violating the fourteenth amend-
ment of the constitution of the United States. "^ But this great
principle is usually re-enforced by the constitutions of the various
States themselves. For example, the California constitution pro*
vides (article 1, section 13) : **No person shall be .... ; nor be de-
prived of life, liberty or property without due process of law."

1 This amendment applies only to U. S. 403, 41 L. ed. 489,. 17 Sup.
Acts of Congress. Fallbrook Irr. Ct. Rep. 130; Fallbrook Irr. XHst. v.
Dist. V. Bradley, 164 U. S. 112, 41 Bradley, 164 U. S. 158, 41 L. ed.
L. ed. 369, 17 Sup. Ct. Rep. 56. 369, 17 Sup. Ct. Rep. 56; Matter of

2 Helena etc. Co. ' v. Spratt Tuthill, 163 N. Y. 133, 79 Am.* St.
(Mont.), 88 Pac. 773, citing Mis- Rep. 574, 57 N. E. 303, 49 L. R. A.
souri Pacific R. Co. v. Nebraska, 164 781.

S 25'

EMINENT DOMAIN.

380

To secure a right of way for a ditch or canal over private land
against the will of the landowner, it is necessary to proceed by con-
demnation under the law of eminent domain. In Colorado the law
at first started on a contrary course, and held ^ that on the ground of
public policy, all irrigators had a right of way of necessity over an-
other's land to water. But this was limited **to the narrowest
limits/'^ and since the adoption of the Colorado, constitution it is
recognized in Colorado as elsewhere that this is a taking of property
which can be done only under the power of eminent domain.* A
statute authorizing the building of a ditch over the land of another
without notice or the other requisites of condemnation proceedings
is unconstitutional.^

§ 267. Necessity for Hearing and Oompensation. — Even when
taken for public use, constitutions so firmly protect private property
that they prohibit a taking without a due hearing and just com-
pensation. As to Congress the Federal constitution so provides
in article V, — ^''Nor shall private property be taken for public use,
without just compensation. ' ' ''

The California constitution provides (in article 1, section 14) :
** Private property shall not be taken or damaged for public use
without just compensation having been first made to, or paid into
court, for the owner, and no right of way shall be appropriated
to the use of any corporation other than municipal until full com-
pensation therefor be first made in money or ascertained and paid

3 Ynnker v. Nichols, 1 Colo. 551.

** Crisman v. Heiderer, 5 C*olo. 596.
. 5 Stewart v. Stevens, 10 Colo. 445,
15 Pac. 786; Boglino v. Giorgetta,
20 Colo. App. 338, 78 Pac. 612;
Nippel V. Forker, 9 (>olo. App. 106,
47 Pac. 766, 26 Colo. 74, 56 Pac.
577; Blake v. Boye (Colo.), 88 Pac.
470; United States v. Gallegos (C.
C. A. Colo.), 89 Fed. 770, 32 C.
C. A. 470; Noteware v. Sterns, 1
Mont. 311; Smith v. Denniff, 24
Mont. 20, 81 Am. St. Rep. 408, 60
Pac. 398, 50 L. R. A. 741; Toyaho
etc. Co. V. Hutchins, 21 Tex. Civ.
App. 274, 52 S. W. 101; Sterritt v.
Young, 14 Wvo. 146, 116 Am. St. Rep.
994, 82 Pac* 946, 4 L. R. A., N. S.,
169; McPhail v. Forney, 4 Wvo. 556,
35 <Pac. 773. Cf. Biggs v. Utah etc.
Co., 7 Ariz. 331, 64 Pac. 494; Jenni-

son v. Kirk, 98 U. S. 453, 25 L. ed.
240; and cases ante, sees. 75-83, in
discussing whether any appropriation
may be made on private land. But
cf. Colo. Const., art. II, sec. 14, say-
ing: ''That private property shall
not be taken for private use except
for private ways of necessity and
except for reservoirs, drains, flumes
or ditches on or across the lands
of others, for agricultural, mining,
milling, domestic, or sanitary pur-
pose?. * '

« Sterritt v. Young, 14 Wyo. 146,
116 Am. St. Rep. 994, 82 Pac. 946,
4 L. R. A., N. S., 169.

7 This amendment applies only to
acts of Congress. Fallbrook Irr.
Dist. V. Bradley, 164 U. S. 112, 41
L. ed. 369, 17 Sup. Ct.. Rep. 56.

390

THE LAW OP APPROPRIATION.

S 258

into court for the owner, irrespective of any benefit from any im-
provement proposed by such corporation, which compensation shall
be ascertained by a jury, unless a jury be waived, as in other civil
cases in a court of record, as' shall be prescribed by law."

In Colorado (Const., art. II, sec. 15) : **That private property
shall not be taken or damaged, for public or private use, without
just compensation. Such compensation shall be ascertained by a
board of commissioners, of not less than three freeholders, or by a
jury, when required by the owner of the property," etc.

§ 258. What is a Public Use.— While the law of eminent do-
main applies only to takings for a public use, there are two lines
of decisions upon what is a public use. The older one is that a
public use of water must be for the use of the general public, the
taking being by its official representatives or some one standing
in the position of a public agent, and not for particular individuals
or estates. Such seems to be the rule in California.® Consequently,
in California, water cannot thus be taken to run a group of mines,
as it is merely private enterprise.® For irrigation, under this view,
water must be condemned, if at all, only by corporations or others
who will supply it to the public in general, and not merely for their
own use. Such corporations, then, stand in the position of an
agent of the public.^^ Lux v. Haggin says: **It must always be
borne in mind that under the codes no man, or set of men, can take
another's property for his own exclusive use. Whoever attempts
to condemn the private right must be prepared to furnish (to the
extent of the water he consumes and pays for) every individual
of the community or communities, farming neighborhood or farm-
ing neighborhoods, to which he conducts it, the consumers being re-
quired to pay reasonable rates,, and being subjected to reasonable
regulations."

The California legislature has provided ^^ for various cases of
eminent domain proceedings, among them the following: '* Canals,

8 Hildreth v. Montecito etc. Co.,
139 Cal. 22, 72 Pac. 395; Merrill
V. SouthBide Irr. Co., 112 Cal. 426,
44 Pac. 720; Los Angeles v. Pome-
roy, 124 Cal. 597, 57 Pac. 585.

« Lorenz v. Jacob, 63 Cal. 73;
Consolidated etc. Co. v. Central etc.
Ry., 51 Cal. 269; County of Sutter
v.- Nichols, Cal. Sup., Jan. 23, 1908,
citing, also, Dower v. Richards, 73
Cal. 480, 15 Pac. 105; Amador etc.

Qo. V. DeWitt, 73 Cal. 485, 15 Pac.
74.

10 State V. Superior Court (Wash.),
92 Pftc. 271; Colorado etc. Co. v. Mc-
Farland et al. (Tex. Civ. App.), 94
8. W. 400; Borden v. Tres Palacios
etc. Co., 98 Tex. 494, 107 Am. St.
Rep. 640, 86 S. W. 11; Lux v. Hag-
gin, 69 Cal. 255, 10 Pac. 674.

11 Cal. Code Civ. Proc., sec. 1238.

9 258

EMINENT DOMAIN.

391

ditches, dams, pondings, flumes, aqueducts and pipes, for irriga-
tion, public transportation, supplying mines and farming neigh-
borhoods with water, and draining and reclaiming lands," etc.
The court has upheld the taking by irrigation districts and by irri-
gation companies, under the provision allowing the taking for
* 'farming neighborhoods."^^ What constitutes a farming neigh-
borhood was considered in Lux v. Haggin, saying: ''The words
'farming neighborhoods' are somewhat indefinite; the idea sought
to be conveyed by them is more readily conceived than put into
accurate language. OiP course 'farming neighborhood' implies
more than one farm ; but it would be difScult to say that any cer-
tain number is essential to constitute such a neighborhood. The
vicinage may be nearer or more distant, reference being had to the
populousness or sparseness of population of the surrounding
country ; but the farmers must be so near to each other — relatively
to the surrounding settlers — as to make what in popular parlance
is known as a 'farming neighborhood.' A very exact definition of
the word is not, however, of paramount importance. The main
purpose of the statutes is to provide a mode by which the State,
or its agent, may conduct water to arable lands where irrigation
is a necessity, on payment of due compensation to those from
whom the water is diverted. The same agent of the State may take
water to more than one farming neighborhood."
The taking for a public water supply in California^* was upheld.^*
On the other hand, milling is not, in California, a public use, and
the above statute authorizing water to be taken to run a group of
mines is to this extent unconstitutional.^* The difference between
mining and irrigation in this respect emphasizes the fact, shown
throughout this whole subject, that mining is no longer the para-
mount industry in California.

Cases holding that, to constitute a public use, the use must be
for, or available to, the general public, and that all the public, or
a class thereof, must have a fight to share directly in the use, are
given herewith.!*

12 Lux V. Haggin, 69.Cal. 255, 10
Pac. 674; and in Aliso etc. Co. v.
Baker, 95 Oal. 268, 30 Pac. 537;
Lindnaj etc. Co. v. Mehrtens, 97 Cal.
670, 32 Pac. 802; Fallbrook Irr. Dist.
V. Bradley, 164 U. 8. 112, 41 L. ed.
369, 17 Sup. Ct. Rep. 56.

18 Under Code of Civil Procedure,
1238.

^4 St. Helena etc. Co. v. Forbes,
62 Cal. 182;.McCraTy v. Baudry, 67
Cal. 120, 7 Pac. 264; Santa Cruz v.
Enrigbt, 95 Cal. 105, 30 Pac. 197.
See Cal. Const., art. XIY, sec. 1.

16 Cases cited supra,

w As cited in Helena etc. Co. v.
Spratt (Mont.), 88 Pftc. 776: Bor-
den v. Trespalacios Bice etc. Co.

392

THE LAW OF APPROPRIATION.

SS 259, 260

§ 269. Private Enterprise as Public Use. — On the other hand,
there is the second view, that the right to actual use by the public
or a class thereof is not necessary, but that the promotion of a
great industry, such as mining in some States, irrigation in others,
may, under peculiar local conditions, be of sufficient interest to the
public at large to constitute the taking by a private person for his
individual enterprise alone, a public use. The leading case in sup-
port of this doctrine is the recent decision of the supreme court
of the United States in Clark v. Nash,^"' affirming the Utah case of
Nash V. Clark.^® The supreme court of Utah said: **One class of
authorities, in a general way, holds that by public use is meant a
use by the public or its agencies — that is, the public must have
the right to the actual use in some way of the property appro-
priated; whereas the other line of decisions holds that it is a public
use within the meaning of the law when the taking is for a use that
will promote the public interest, and which use tends to develop the
natural resources of the commonwealth." And held that a Utah
atatute^^ providing for the enlargement by condemnation of an-
other's ditch to convey water to your land for irrigation is consti-
tutional.^ This was affirmed by the supreme court of the United
States in Clark v. Nash,^^ as follows :

§ 260. Clark v. Nash.^— In the course of the statement of the
case by Mr. Justice Peckham, it is said : ' ' This action was brought

(Tex, Civ. App.), 82 S. W. 461;
Pittsburg etc. B. Co. v. Benwood Iron
Works, 31 W. Va. 710, 8 S. E. 453,
2 L. R. A. 680; Vamer v. Martin, 21
W. Va. 534; Fallsburg Power Mfg.
Co. V. Alexander, 101 Va. 98, 99 Am.
St. Biep. 855^ 43 S. E. 194, 61 L.
R. A. 129; Iji re Barre Water Co.,
72 Vt. 413, 82 Am. St Rep. 914,
48 Atl. 653, 51 L. R. A. 754; Avery
V. Vermont Electric Co., 75 Vt. 235,
98 Am. St. Rep. 818, 54 Atl. 179,
59 L. R. A. 817; Berrien Springs Wa-
ter Co. V. Berrien Circuit Judge, 133
Mich. 48, 103 Am. St. Rep. 438, 94
N. W. 379; Brown v. Gerald, 100
Me. 351, 109 Am. St. Rep. 526, 61
AU. 785, 70 L. R. A. 472; State v.
White River Power Co., 39 Wash.
648, 82 Pac. 150 2 L. R. A., N. S.,
842; State . V. Superior Court, 42
Wash. 660, 85 Pac. 666. See, also,
State V. Superior Court (Wash.), 92
Pac. 271.

17 198 U. S. 361, 49 L. ed. 1085,
25 Sup. Ct. Rep. 676.

18 27 Utah, 158, 101 Am. St. Rep.
953, 75 Pftc. 371, 1 L. R. A., N. S.,

::08.

19 Utah Rev. Stats., 1898, sec. 1278.

20 Relying on Dajrton Min. Co. v.
Seawell, 11 Nev. 394, holding simi-
larly as to a right of way to haul
material to one's mine; and citing
Oury V. Goodwin, 3 Ariz. 255, 26
Pac. 376; De Graffenried v. Savage,
9 Colo. App. 131, 47 Pac. 902; Yun-
ker V. Nichols, 1 Colo. 551; Schill-
ing V. Rominger, 4 Colo. 100; Elling-
house V. Taylor, 19 Mont. 462, 48
Pac. 757; Fallbrook Irr. Co. v. Brad-
ley, 164 U. S. 112, 41 L. ed. 369,
17 Sup. Ct. Rep. 56.

21 198 U. S. 361, 49 L. ed. 1085,
25 Sup. Ct. Rep. 676.

22 198 U. 8. 361, 49 L. ed. 1085,
25 Sup. Ct. Rep. 676.

§ 260 EMINENT DOMAIN. 393

by the defendant in error, Nash, to condemn a right of way, so
called, by enlarging a ditch for the conveying of water across the
land of plaintiffs in error, for the purpose of bringing water from
Fort Canyon Creek, in the coiinty and State of Utah, which is a
stream of water flowing from the mountains near to the land of ■
the defendant in error, and thus to irrigate his land. .... That
the said waters of said Fort Canyon Creek cannot be brought upon
the said plaintiff's said land by any other route except by and
through the ditch of the defendants, owing to the canyon through
which said ditch runs being such as to only be possible to build
one ditch." Defendants refused to give permission. The ditch
was to be widened only one foot and the whole damage would
be forty dollars ($40)! Mr. Justice Peckham delivered the opin-
ion of the court, which follows in full : ^^

**The plaintiffs in error contend that the proposed use of the
enlarged ditch across their land for the purpose of conveying water
to the land of the defendant in error alone is not a public use.
and that, therefore, the defendant in error has no constitutional
or other right to condemn the land, or any portion of it, belonging
to plaintiffs in error> for that purpose. They argue that, although
the use of water in the State of Utah for the purposes of mining
or irrigation or manufacturing may be a public use where the
right to use it is common to the public, yet that no individual
has the right to condemn the land for the purpose of conveying
water in ditches across his neighbor's land, for the purpose of
irrigating his own land alone, even where there is, as in this case, a
State statute permitting it.

**In some States, probably in most of them, the proposition
contended for by the plaintiffs in error would be sound. But
whether a statute of a State permitting condemnation by an in-
dividual for the purpose of obtaining water for his land or for
mining should be held to be a condemnation for a public use, and,
therefore, a valid enactment, may depend upon a number of con-
siderations relating to the situation of the State and its possibili-
ties for land cultivation, or the successful prosecution of its min-
ing or other industries. Where the use is asserted to be public,
and the right of the individual to condemn land for the purpose
of exercising such use is founded upon or is the result of some

23 Clark V. Nash, 198 U. 8. 361, 4^ L. ed. 108o, 25 Sup. Ct. Rep. 676.

394 THE LAW OF APPROPRIATTOX. 9 260

peculiar condition of the soil or climate, or other peculiarity of the
State, where the right of condemnation is asserted under a State
statute, we are always, where it can fairly be done, strongly in-
clined to hold with the State courts, when they uphold a State
statute providing for such condemnation. The validity of such
statutes may sometimes depend upon many different facts, the ex-
istence of which would .make a public use, even by an individual,
where, in the absence of such facts, the use would clearly be
private. Those facts must be general, notorious, and acknowledged
in the State, and the State courts may be assumed to be excep-
tionally familiar with them. They are not the subject of judicial
investigation as to their existence, but the local courts know and
appreciate them. They understand the situation which led to the
demand for the enactment of the statute, and they also appreciate
the results upon the growth and prosperity of the State which, in
all probability, would flow from a denial of its validity. These
are matters which might properly be held to have a material bear-
ing upon the question whether the individual use proposed might
not in fact be a public one. It is not alone the fact that the land
is arid and that it will bear crops if irrigated, or that the water is
necessary for the purpose of working a mine, that is material;
other facts might exist which are also material — such as the par-
ticular manner in which the irrigation is carried on or proposed,
or how the mining is to be done in a particular place where water is
needed for that purpose. The, general situation and amount of
the arid land or of the mines themselves might also be. material,
and what proportion of the water each owner should be entitled to ;
also the extent of the population living in the mirrounding country,
and whether each owner of land or mines could be, in fact, fur-
nished with the necessary water in any other way than by the
condenmation in his own behalf, and not by a company, for his use
and that of others.

** These, and many other facts not necessary to be set forth in
detail, but which can easily be imagined, might reasonably be re-
garded as material upon the question of public use, and whether the
use by an individual could be so regarded. With all of these the
local courts must be presumed to be more or less familiar. This
court has stated that what is a public use may frequently and
largely depend upon the facta surrounding the subject, and we have
said that the people of a State, as also its courts, must, in the nature

§ 260 EMINENT DOMAIN. 395

of things, be more familiar with such facts, and with the necessity
and occasion for the irrigation of the lands, than can anyone be who
is a stranger to the soil of the State, and that such knowledge and
familiarity must have their due weight with the State courts.^* It
is true that in the FaUbrook case the question was whether the
use of the water was a public use when a corporation sought to
take land by condemnation under a State statute, for the purpose
of making reservoirs and digging ditches to supply landowners with
the water the company proposed to obtain and save for such pur-
pose. This court held that such use was public. The case did not
directly involve the right of a single individual to condemn land
under a statute providing for that condemnation.

**We are, however, as we have said, disposed to agree with the
Utah court with regard to the validity of the State statute which
provides, under the circumstances stated in the act, for the con-
demnation of the land of one individual for the purpose of allowing
another individual to obtain water from a stream in which he has
an interest, to irrigate his land, which otherwise would remain
absolutely valueless.

**But we do not desire to be understood by this decision as ap-
proving of the broad proposition that private property may be
taken in all cases where the taking may promote the public interest
and tend to develop the natural resources of the State. We simply
say that in this particular case, and upon the facts stated in the
findings of the court, and having reference to the conditions already
stated, we are of opinion that the use is a public one, although the
taking of the right of way is for the purpose simply of thereby
obtaining the water for an individual, where it is absolutely neces-
isary to enable him to make any use whatever of his land, and which
will be valuable and fertile only if water can be obtained. Other
landowners adjoining the defendant in error, if any there are,
might share in the use of the water by themselves taking the same
^ proceedings to obtain it, and we do not think it necessary, in order
to hold the use to be a public one, that all should join in the same
proceeding, or that a company should be formed to obtain the water
which the individual landowner might then obtain his portion of
from the company by paying the agreed price, or the price fixed by
law.

24 Citing FaUbrook Irr. Dist. v. Bradley, 164 U. S. 112, 159, 41 L.
ed. 369, 388, 17 Sup. Ct. Rep. 56.

396

THE LAW OF APPEOPRIATION.

S 261

**The rights of a riparian owner in and to the use of the water
flowing by his land are not the same in the arid and mountainous
States of the West that they are in the States of the East. These
rights have been altered by many of the Western States by their
constitutions and laws, because of the totally different circum-
stances in which their inhabitants are placed, from those that exist
in the States of the East, and such alterations have been made
for the very purpose of thereby contributing to the growth and
prosperity of those States, arising from mining and the cultiva-
tion of an otherwise valueless soil; by means of irrigation. This
court must recognize the difference of climate and soil, which ren-
der necessary these different laws in the States so situated.

'*We are of opinion, having reference to the above peculiarities
which exist in the State of Utah, that the statute permitting the
defendant in error, upon the facts appearing in this record, to en-
large the ditch, and obtain water for his own land, was within
the legislative power of the State, and the judgment Of the State
court affirming the validity of the statute is therefore affirmed."
(Mr. Justice Harland and Mr. Justice Brewer dissented.)

The supreme court of the United States affirmed Clark v. Nash
in Strickley v. Highland Boy Co.,^^ and applied the same rule
to mining in Utah.

§ 261. Same. — This rule that public interest in the prosperity
of an inc^^ry may, under peculiar local conditions, constitute
private enterprise a public use, has been applied to mining in
Nevada,^ Alaska,^ and Utah.^ It has been applied to iriicration
in Arizona,^ Colorado,^ Montana,*^ Waahington,*^ Nebraska.^ It
has been applied in Idaho ^ to taking land for a storage reservoir to

25 200 U. S. 527, 50 L. ed. 581, 26
Sup. Ct. Rep. 301.

28 Dayton Min. Co. v. Sea well, 11
Nev. 394.

27 Miocene Ditch Co. v. Jacobsen,
146 Fed. 680.

28 Strickland v. Highland Boy Co.,
?00 U. S. 527, 50 L. ed. 581, 26 Sup.
Ct. Bep. 301.

20 Oury V. Goodwin, 3 Ariz. 255, 26
Pac. 376.

30 Yunker v. Nichols, 1 Colo. 551,
nemhle; Schilling v. Rominger, 4 Colo.
100," semble; Schneider v. Schneider,
.^6 Colo. 518, 86 Pac. 347, semble.

31 Ellinghouse v. Taylor, 19 Mont
462, 48 Pac. 757.

32 Weed V. Goodwin, 36 -Wash. 31,
78 Pac. 36. But compare State t.
Superior Court (Wash.), 92 Pac. 271.

38 Semble, Crawford etc. Co, v.
Hathaway, 67 Neb. 325, 108 Am. St.
Bep. 647, 93 N. W. 781, 60 L. B. A.
889; Cline v. Stock (Neb.), 102 N.
W. 265; McCook Irr. Co. v. Oews
(Neb.), 102 N. W. 249.

34 Poltach etc. Co. v. Peterson
(Idaho), 88 Pac. 426.

9 261

EMINENT DOMAIN.

397

float logs to a private sawmill; ^ in Montana,^ to flooding lands to
obtain water-power by an electric company supplying mines* and
smelters (as well as supplying water, for irrigation, by the same
company). Condemnation for power plants has, in the West,
usually been rested on this view, though, when the company is bound
to supply all the public to the extent of its capacity, it would also
be a public use under the narijower view.'''

In a recent Idaho case^ it is said: *'The decisions under many
State constitutions, therefore, are of little value as precedents for
cases arising under constitutions like that of Idaho, Colorado, and
other Western States, which make the character of the use, whether
strictly public or otherwise, the criterion of the right to exercise
the power. There are two well-marked and conflicting lilies of
decisions by the courts in dealing with the constitutional rights to
exercise the power of eminent domain. One class of those deci-
sions is represented by Brown v. Gerald ^ which draws a sharp dis-
tinction between 'public use' and 'public benefit' and guards the
private rights of property against the assertion of the power of
eminent domain for public benefits as distinguished from public use.
The other line of decisions is represented by Nash v. Clark,"*^ which
case was taken by error to the supreme court of the United States.^*
.... The latter class of cases takes the view that the general wel-
fare and benefit of the public should prevail over private property
rights even though the use for which the power of eminent domain
is asserted, is not, in a strict sense, a public use, and, as stated in
the note to State ex rel. Tacoma I. Co. v. White River P. CO.,**
*the influence of peculiar local conditions and necessities in deter-
mining the choice between these two tendencies is plainly discern-
ible.' " A recent Montana case,^ relying on Clark v. Nash, says:
**The courts of the Western States have, as a rule, adopted a liberal
view of the term 'public use,' and in the main have largely fol-

.35 Contra, see State v. Superior
Court (Wash.), 92 Pac. 271.

36 Helena Power Co. v. Sprat t
(Mont.), 88 Pac. 773.

37 See Salt Lake City v. Salt Lake
City W. & E. P. Co., 25 Utah, 441, 71
Pac. 1071 ; Hollister v. State, 9 Idaho,
651, 71 Pac. 339; Denver P. & L Co.
V. Denver & R. G. B. Co., 30 Colo. 204,
69 Pac. 568, 60 L. E. A. 383.

38 Poltach etc. Co. v. Peterson
(Idaho), 88 Pac. 426.

39 100 Me. 351, 109 Am. St. Rep.
526, 61 Atl. 785, 70 L. B. A. 472.

40 27 Utah, 158, 101 Am. St. Rep.
953, 75 Pac. 371, 1 L. R. A., N. S.,
208.

41 198 U. 8. 361, 49 L. ed. 1085, 25
Sup. Ct. Rep. 676.

42 39 Wash. 648, 82 Pac. 150, 2
L. R. A., N. S., 842.

43 Helena etc. Co. v. Spratt (Mont.),
88 Pac. 773.

398

THE LAW OF APPROPRIATION.

§ 261

lowed the so-called *Mill Cases' of New Etigland." And quoting
another Montana case : * * The public policy of the territory and of
the State of Montana has always been to encourage in every way
the development of the minerals contained in the mountains; and
the necessity for adding to its tilled acreage is manifest. This
State is an arid country, and water is essential to the proper tillage
of its scattered agricultural valleys. With all this in view, it was
expressly declared in our State constitution that the use of water
by private individuals for the purpose of irrigating their lands
should be a public use/' And concludes: **We are largely in-
fluenced in so holding by the two decisions of this court hereinbe-
fore referred to, wherein we are already committed to the broad
and, as it has sometimes been called, 'statesmanlike' view of this
question."

In the Nebraska cases the taking was by corporations proposing
general supply and hence a public use within the narrower def-
inition, but the decisions were placed on the broader ground.^
* ' The development of a system of irrigation and the appropriation
and application of the waters of the streams of the State for the
purpose, is obviously a work of internal improvement." And
again, referring to statutes, ''Under these comprehensive provisions
the legislature could have intended nothing less than that 'in the
construction and operation of irrigation enterprises private prop-
erty reasonably necessary for the conduct of the business could be
taken and appropriated on due compensation by the exercise of the
power and right of eminent domain."

The tendency will be great to say that the rule has by Clark v.
Nash become established that private property may now be con-
demned for the private use of another; that condemnation is no.
longer restricted to public use, but that property may be condemned
for a private use. That, however, is far from true. The theory is
still that the taking is for a public use, and the private enterprise

44 Crawford v. Hathaway, 93 N. W.
781.

Other decisions adopting this view
of what constitutes a public use are
given herewith. As cited in Helena
etc. €k>. V. Spratt (Mont.), 88 Pae.
775, viz.: Aldridge v. Tuscumbia etc.
B. Co., 2 Stew. (Ala.) 109, 23 Am.
Dec. 307: Todd v. Austin, 34 Conn.
78; Hand Gold Min. Co. v. Parker,
59 Ga. 419; Bradley v. New York

etc. B. Co., 21 Conn. 294; Great Palls
Mfg. Co. V. Femald, 47 N. H. 456;
Talbot V. Hudson, 16 Gray (Mass.),
417 ; Olmstead v. Camp, 33 Conn. 532,
89 Am. Dec. 221; Boston ft Boxbury
Mill Co. V. Newman, 12 Pick. (Mass.)
467, 23 Am. Dec. 622; Bcudder ▼.
Trenton Delaware Falls Co., 1 N. J.
£q. 694*728, 23 Am. Dec. 756. Clark
V. Nash is criticised by Mr. Pamham
in a not« in 1 L. B. A., N. S., 208.

§ 262 EMINENT DOMAIN. 399

must be such as, because of pressing and universal necessity growing
out of peculiar natural conditions in the State, is inferentially a use
for the welfare of the public at large. Where there is no such
pressing- and universal necessity and no such peculiar natural con-
ditions, the private enterprise will not, under Clark v. Nash, prop-
erly constitute a use for which condemnation will lie, as was said
by way of dictum in Shasta Power Co. v. Walker.**^ There Clark
V. Nash was held inapplicable to a case in California taking land
for a. water ditch for purposes of a light and power, plant, if com-
pulsory service to the general public is not to be a part of the pro-
posed use, and private service, merely, is primarily intended.^

§ 262. In Oalifomia. — While, as has been said, the actual deci-
sions in California are against this rule, and require a taking for
use by public ofScials or those in the position of public agents,
supplying or serving the public or a class thereof, yet there is
ground for considering it not concluded. In Lux v. Haggin *'' the
court considered it an open question, though somewhat startling,
saying: ** Whether, in any supposable instance, the public has such
interest in a use which can be directly enjoyed only by an in-
dividual for his profit, and without any concomitant duty from
him to the public, as that the government may be justified in^ em-
ploying the eminent domain power for the use, as for a public
use, is a question somewhat startling, but which is not involved
in the decision of the present action. In case further legislation
shall be deemed expedient for the distribution of waters to public
uses, we leave its validity to be determined after its enactment,
if its invalidity shall then be asserted.'' And elsewhere saying:
''It may be that, under the physical conditions existing in some
portions of the State, irrigation is not, theoretically, a 'natural
want,' in the sense that living creatures cannot exist without it;
but its importance as a means of producing food from the soil
makes it less necessary, in a scarcely appreciable degree, from the
use of water by drinking it. The government would seem to have
not only a distant and consequential, but a direct, interest in the
use; therefore a public use."

^ 149 Fed. 568. California in the absence of Judge

46 This was said by Judge Wolver- Morrow,
ton of the Oregon District, sitting in 47 69 Cal. 255, 10 Pae. 674.

400 THE LAW OF APPBOPBIA^TION. S 263

Moreover, in Pallbrook Irr. Dist. v. Bradley *® the supreme court
of the United States upheld the taking by California irrigation
districts on this ground and not on the other restricted ground,
saying: '^On the other hand, in a State like California, which
confessedly embraces millions of acres of arid lands, an act of the
legislature providing for their irrigation might well be regarded
as an act devoting the water to a public use, and therefore as a
valid exercise of the legislative power. ..... The fact that the ,use

of the water is limited to the landowner is not, therefore, a fatal
objection to this legislation. ' ' And in conclusion says : * ' We have no
doubt that the irrigation of really arid lands is a public purpose,
and the water thus used is put to a public use."

Further, Clark v. Nash was relied on in the Federal court of the
circuit in which California lies,^ which held that under peculiar
local conditions (in Alaska) private mining is a use for which
a ditch right of .way may be condemned.**^ On the other hand,
Clark V. Nash was said in the case above referred to ^^ not to apply
to use in California for power purposes.

§ 263. Statement of the Rule of Olark v. Nash.— This rule, thai
private enterprise may constitute a public use, cannot be ac-
curately summed up in merely a few words; but from the above
the following may be a serviceable summar^'^: The situation of a
State and the possibilities and necessities for the successful prose-
cution of various industries, and peculiar condition of soil or
climate or other peculiarities, being general, notorious and ac-
knowledged in the State so as to be judicially known and excep-
tionally familiar to the courts without investigation — such condi-
tions justify a State court in upholding a statute authorizing the
taking of another's private property by one individual for his own
enterprise, where it believes, by reason of the above, that such
a taking will, through its contribution to the growth and pros-
perity of the State, constitute a public benefit, and the supreme
court of the United States will follow the decision of the State
court in such a case.

48 164 U. S. 117, 41 L. ed. 369, 17 fornia Code of Civil Procedure, section

Sup. Ct. Bep. 56. , 1238, and probably copied therefrom.

M Under Alaska Code, c. 22, sec. 50 Miocene Ditch Co. v. Jacobsen,

2a4, 31 Stats. 522, which is worded 146 Fed. 680.

very close to the provision of the Cali- 51 Page 399.

9 264

EMINENT DOMAIN.

401

§ 264. Procedure. — ^The acquisition of rights by condemnation
and by appropriation are entirely different,*^^ and the statutes
for posting notice, filing maps, etc., regarding appropriation have
no application to condemnation unless the statutes expressly so de-
clare.*^

A water right and a ditch right may be condemned separately.**
It has been held that a water right must be first acquired before
condemning for a ditch,***^ but the contrary has also been held.*®

Under statutes so providing in some States, condemnation
will lie to enlarge an existing ditch belonging to another."
Such a statute refers only to enlarging strictly private ditches,
and does not give a city the right to enlarge the ditch of a water
company.** In condemnation under such a statute the right of
way has a money value to be assessed as damages,'^ and the en-
largement must be made without requiring expenditure or work
on the part of the original ditch owner.®® No enlargement will
be allowed in the absence of great necessity, where another road is
practicable.®^ The enlarger must bear the cost, and pay damages
to the ditch owner and to the landowner.®^ The ditch of a dis-
tributing company may be enlarged by another appropriator.*®

Statutes for condemnation of rights of way for ditches under
this ' procedure, or for enlargement of existing ditches exist in
Utah,®* Colorado,®* Oregon.®®

62 state V. Superior Court (Wash.),
90 Pae. 653.

58 Apply to, condemnation of right
of way for ditches by special Wash-
ington statute. State t. Superior
Court (Wash.), 90 Pac. 653.

M Schneider v. Schneider, 36 Colo.
518, 86 Pac. 348.

M Nippel V. Forker, 26 Colo. 74,
56 Pac. 577; Castle Eock etc. Co. v.
Jurisch, 67 Neb. 377, 93 N. W. 690.

56 Schneider v. Schneider, 36 Colo.
518, 86 Pac. 347; Prescott Irr. Co.
V. Flathers. 20 Wash. 454, 55 Pac.
635; State v. Superior Court (Wash.)
90 Pac. 653.

57 Clark V. Nash, 198 U. S. 361, 49
L. ed. 1085, 25 Sup. Ct. Bep. 676,
affirming Nash v. Clark, 27 Utah, 158,
101 Am. St. Bep. 953, 1 L. B. A., N.
S., 208, 75 Pac. 371; Schneider v.
Schneider, 36 Colo. 518, 86 Pac. 347,
dictum; Downing y. More, 12 Colo.
316, 20 Pac. 766.

Water Rights — 26

58 Junction etc. Co. v. City of Dur-
ango, 21 Colo. 194, 40 Pac. 356.

ae Sand Creek etc. Co. v. Davis, 17
Colo. 326, 29 Pac. 742.

60 Ihid.

61 Downing v. More, 12 Colo. 316,
706, 20 Pac. 766.

62 Clark V. Nash, 198 U. s' 361, 49
L. ed. 1085, 25 Sup. Ct. Bep. 676;
Sand Creek Co. v. Davis, 17 Colo. 326,
29 Pac. 742; Patterson v. Brown etc.
Ditch Co., 3 Colo. App. 511, 34 Pac.
769.

68 Sand Creek Co. v. Davis, 17 Colo.
326, 29 Pac. 742. See, also, San Luis
Co. V. Kenilworth Co., 3 Colo. App.
244, 32 Pac. 860.

64 See statutes in Part VI, below.

65 M. A. S., sees. 2261, 2263.

66 Stats. 1891, p. 52, sees. 12, 13.
See, also, statutes cited in sections
79, 132, 133, supra.

402

THE LAW OF APPROPRIATION.

§ 264

Condemnation may be made of property already devoted to public
use, for a more necessary public use. Irrigation rights may be con-
demned to furnish a city water supply.®^ Land may be condemned
for a reservoir, though containing a public highway, the reser-
voir being a more necessary public use.^ As to how far condemna-
tion will lie for water already devoted to a public use, quaere,^
Between two rival public service corporations, the one first started
may condemn the water rights of a later one, where only one is
possible.''®

In California it has been said: ''It seems not to be important
whether the corporation through whose instrumentality the object
is to be obtained be a domestic or foreign corporation."^* In
a recent Montana case the contrary was held,^^ but this was im-
mediately changed by statute.''^* In Alaska it has been held
that a California corporation cannot exercise the power of eminent
domain.''^

In Nebraska the condemnation procedure follows that of con-
demnation by railroads.^* In Washington a decree of condemna-
tion must provide that the money shall be paid to the clerk of the
court before work upon the ditch shall be commenced.^

The fact that water rights and ditch rights sought on eminent
domain may conflict with the rights of other appropriators who

6T City of Helena v. Rogan, 26
Mont. 452, 68 Pac. 798, 27 Mont.
135, 69 Pac. 709.

68 Marin Co. etc. Co. v. Marin
County, 145 Cal. 586, 79 Pac. 282.

69 See, also. Junction etc. Co. v.
City of Durango, 21 Colo. 194, 40 Pac.
356; Denver etc. Co. v. Denver etc.
Co., 30 Colo. 204, 69 Pac. 568, 60 L.
R. A. 383, denying condemnation of
railway for reservoir; Salt Lake etc.
Co. V. Salt Lake aty, 25 Utah, 441,
•71 Pac 1067; Reclamation Dist. v.
Superior Court, 151 Cal. 263, 90 Pac.
545, allowing condemnation of a rec-
lamation levee for a railway roadbed.

70 State V. Superior Court (Wash.),
90 Pac. 653.-

71 Gilmer v. Lime Point, 18 Cal.
251. Accord Kirk etc. Co. v. Amer-
ican Assn. (Ky.), 108 S. W. 232.

72 Helena etc. Co. v. Spratt (Mont.),
88 Pac. 773, citing Chestatee Pyrites
Co. V. Cavenders Cr. M. Co., 119 Ga.
354, 100 Am. St. Rep. 174, 46 S. £.

422; Vanderpool v. Gorman, 140 N. Y.
563, 37 Am. St. Rep. 601, 35 N. E.
932, 24 L. R. A. 548; South Tuba
Water Co. v. Rosa, 80 Cal. 333, 22
Pac. 222 (which, however, is not in
point) ; Rumbough v. Southern Im.
Co., 106 N. C. 461, 11 S. Ev 528;
Postal Tel. Co. v. Cleveland etc. Ry.
Co. (C. C), 94 Fed. 234. But limit-
ing its decisions to corporations of
the character of the respondent in the
principal case.

72a Spratt v. Helena Co. (Mont.),
94 Pac. 631.

78 Miocene D. Co. v. Lyng, 2 Alaska,
265.

74 Crawford v. Hathaway, 67 Neb.
325, 108 Am. St. Rep. 647, 93 N. W.
781, 60 L. R. A. 889.

75 Pulton V. Methow etc. Co.
(Wash.), 88 Pac. 117. For a ques-
tion of procedure in Oregon, see
Grande Ronde etc. Co. v. Drake, 46
Or. 243, 78 Pac. 1031.

S 265

EMINENT DOMAIN.

403

are not parties to the action cannot be raised^® The rights of
-strangers to the suit cannot be allowed to influence condemnation
proceedings^^ A complaint in an action to condemn water rights
to supply specified towns '*and other places'' is defective, since
'* other places*' would include uses not public uses.''®

It has been held that the presence of percolating water was not an
element that could be considered in estimating the value of prop-
erty taken on eminent domain.'^® But the rul6 may be different
under the recent modiiication of the law of percolati'ig waters.

S 266. A Question in Procedure. — Application to the lav of
waters of a certain principle of procedure that exists in the law of
railways would dispense with technical eminent domain proceed-
ings, and, in fact, with a hearing at all, and so f&cilitate condemna-
tion of water rights as to be far-reaching in its practical results.
As the matter has been suggested chiefly in the condemnation of
riparian rights, the question is considered late; herein.®^

7« Schneider v. Schneiiler, 36 Colo.
.518, 86 Pac. 348.

77 Denver etc. Co. v. Denver etc.
Co., 30 Colo. 204, 69 Pac. 568, 60 L.
B. A. 383. See svpra, sec. 196.

78 Hercul'js Water Co. v. Fernan-
dez (Cal. App.), 91 Par. 401.

79 City •)f Los Angeles v. Pome-
roy, 124 Cal. 597, 57 Pac. 585.

80 Infrt, sec. 339 et seq.

PART 11.

THE COMMON LAW OP. RIPARIAN RIGHTS.

CHAPTER I.

INTRODUCTORY.

S 266. Appropriation and the common law.

S 266a. Same.

S 267. Same.

S 268. Riparian rights under the California doctrine.

§ 266. Appropnation and the Ctonunon Law. — Up to recent
times, the English decisions were devoted consistently to protec-
tion of long-standing enjoyment of the water of a stream. The
early cases usually presented a condition where one had from time
immemorial used the water for a mill or for watering cattle, or
for irrigating a meadow in time of drought,^ and another whoUy
stopped the stream or diverted it elsewhere and left plaintiff's mill
or land dry and helpless, whereupon the courts acted to protect
the former 'p ancient enjoyment. -In the Year Books several such
cases appear,^ giving only the results of the assizes, however (that
the diversion from plaintiff was allowed or denied, being usually
denied), but without any discussion.

This principle of protecting ancient enjoyment is expressly
taken as the ground of decision in the earliest cases containing act-
ual discussion. These cases, of about the sixteenth century, repre-
senting the second stage of the conunon law, discussed the
matter from the^ view of proper pleading by the plaintiff in
such a case. The plaintiff, relying upon an immemorial cus-

1 E. g., 12 Edw. Ill (A. D. 1331), 2 See Woolrych on Waters^ p. 177.

(405)

406 THE COMMON LAW OF RIPARIAN RIGHTS. 9 266a

torn, usually declared, in the words of pleading a custom, that the
water ^^currere solehaf to his mill or land, and that he had made
use of it there from time out of mind. Such pleading was upheld
because it properly alleged an ancient castom. In a case where
plaintiff pleaded '^currere solehat et consuevity^' it was said **caM-
suevit is a good word for a custom."* In another, **If I have a
right from usage as currere solebat, I have the right in such man-
ner as the usage has been.*'* In another, it was held a good
pleading to allege *'quod quidam fluxus aquae currere consuevit et
debuit usque ad quendam fontem."^ In another, it was held suffi-
cient that the water **used sequer cest course,"^ These cases thus
borrowed their principles from the law of prescription or ancient
custom,^ and it is from them that the maxim ''aqua currit et debet
currere ut currere solebat'* arose, as expressing an immemorial
condition of things, in analogy to an ancient custom. This stage,
which the maxim quoted sums up, represents the rule of prescrip-
tion or custom from time out of mind.

The third stage of the English decisions presents the first real
attempt to consider the matter on principle, about the eighteenth
century. The desire still was to protect the long-standing enjoy-
ment; but now treating the matter aside from formal pleading,
the judges went to the civil law for their principles, as later herein
set forth. Still wishing to protect the old enjoyment, they under-
stood these civil-law principles as affirming the doctrine of prior
appropriation, and protected the long-standing use against the
innovation of a recent diversion, on the ground of priority of use.
One of the chief cases to this effect is Liggins v. Inge,® saying:
'*By the law of England, the person who first appropriates any
part of the water flowing through his own land to his own use
has the right to the use of so much as he thus appropriates against
any other."

§ 266a. Same. — The modem law, or fourth stage, rests upon a
re-examination of the civil-law principles "in Mason v. Hill,® and
the more correct application of them made by Lord Denman in
that case, a matter to be reached shortly. It is our object here

3 Shury v. Piggott, Poph. 169. 7 See Tindall, C. J., in Acton v.

4 Brown v. Beat, 1 Wils. 174. Bliindell. 12 Meee. & W. 324.

5 Prickman v. Tripp, Skin 389 ^ ^ 3. ^^3

e Countess of Rutland v. Bowler, « ^ ^^ o ., , ,

Palm. 290. " '^ Barn. & Adol. 1.

§ 266a INTRODUCTORY. 407

only to show that the modem common law repudiates both
the former ideas that the right to a watercourse rests either
on an analogy to custom or prescription, such as influenced
the earliest cases, or on the theory of prior appropriation. A
recent note- writer ^® gives the following regarding this change
of view: ** There was a strong tendency on the part of some
of the judges in the earlier times to recognize a right to obtain
title to water by prior appropriation or occupancy, and at one time,
it seemed as though that doctrine would be established, but the later
cases have all, with one possible exception, been the other way, so
that now no such right is recognized.^^ But in some of those early
cases rulings which are apparently in favor of the doctrine of ap-
propriation are in fact merely in favor of protecting what is known
as riparian rights.** When the question came squarely before the
court for decision, however, the doctrine of prior appropriation
was repudiated. " **

Gtoddard, in his Law of Easements,** declares : * * That all riparian
owners of natural streams have a riparian right to the use of water
as it flows past their lands, as long as they do not interfere with
the natural rights of other riparian owners, and to sue for dis-
turbance is now an established doctrine of the law." He adds:
"The doctrine was not established until comparatively modern
times," etc. He says, after referring to some of the earlier deci-
sions, that the (apparent) theory of appropriation was much modi-
fied by various decisions "as the nature of riparian rights was
brought more fully under consideration."^*' He concludes: ** Ap-
propriation of the water of flowing streams has thus gradually
fallen from being considered the means of acquiring important
rights to being deemed of no importance whatever." In Chase-
more V. Richards,*® Lord Wensleydale declares : ** We may consider,
therefore, that this proposition is indisputable, that the right of the

10 30 L. R. A. 665, note. Frankum v. Falmouth, 6 Car. ft P.

11 In the earlier cases the follow- 529. .

ing decisions and dicta appear: Lig- 13 Stating Mason v. Hill, 5 Barn,

gins V. Inge, 7 Bing. 682; 5 Moore * & Adol. 1; Wood v. Waud, 3 Ex.

k P. 712; WiUiams v. Moreland, 2 748, 18 L. J. Ex. 305; Embrey v.

Barn. & C. 913; 4 Dowl. & R. 583; Owen, 6 Ex. 355; Sampson v. Hod-

Conham v. Fisk, 2 Cromp. & J. 126, dinott, 1 Com. B., N. S., 611; Wright

2 Tyrw. 155; Saunders v. Newman, v. Howard, 1 Sim. & St. 190.
1 Barn. & Aid. 258. 14 Page 251.

12 Stating Rutland v. Bowler, is Citing in this connection, Mason
Palm. 290; Bealey v. Shaw, 6 East, v. HiQ, 3 Barn. & Adol. 304, and
208, 2 Smith, 321; Holker v. Porritt, Cueker v. Cowper, 5 Tyrw. 103.

li. R. 10 Ex. 59, 44 L. J. Ex. 52; 16 7 H. L. Cas. 384.

408

THE COMMON LAW OF RIPARIAN RIGHTS.

9 266a

proprietor to the enjoyment of a watercourse is a natural right,
and is not acquired by occupation." Lux v. Haggin" says: "In
examining the numerous cases which establish that the doctrine of
'appropriation' is not the doctrine of the common law, we meet an
embarrassment of abundance."

Mason v. Hill,^® which is considered to have placed the common
law of riparian rights on its present foundation, was decided in
1833. The older authorities were held, in that case, to be de-
voted to an elucidation of the principle borrowed from the civil
law that the water itself as a corpus or substance is not property
until taken into possession, but do not define the rules governing
who may have the right to take it into possession or to what extent
a person having the right may exercise it; and that they are mis-
conceived if thought to recognize the right to take the water into
possession by anyone but a landowner on its banks, or by such
landowner, to the extent of entirely depriving another landowner
on its bank of the advantage of that stream. Lord Denman, in
giving the decision, said: **But it is a very different question
whether he can take from the land below one of its natural ad-
vantages, which is capable of bein^ applied to valuable purposes,
and generally increases the fertility of the soil even when unapplied
and deprive him of it altogether by anticipating him in its applica-
tion to a useful purpose . . .*. . We think that this proposition has
originated in a mistaken view of the principles laid down in the
decided cases.*' The decision limited the right to use the water |
to one by whose land it flows, or, as he is now called, a riparian
owner; and by him, regardless of the time of use, not to be used||
to the exclusion of other riparian owners. This is the foundation
of the present common law of riparian rights. (The term "riparian
proprietor" does not appear in the older cases at all.) The English
decisions since Mason v. Hill have firmly established the principles
laid down in that case.^®

The contention that the doctrine of appropriation is to-day
recognized by the common law is disposed of by Judge Cooley^

17 60 Cal. 255.

18 5 Barn, k Adol. I.

w See Birkfl k Wilts Canal Co. v.
Swindon W. W. etc. Co., L. B. 9 Ch.
451, L. B. 7 App. Cas. 697 ; McCartney
T. Londonderry By., [1904] App. Cas.
301 ; Miner v. Gilmour, 12 Moore P. C.
131; Lyon v. Fishmongers' Co., L.
B. 1 App. Cas. 673; Sandwich v.

By., 10 Ch. D. 707; Kensit v. By.,
27 Ch. D. 122; White v. White,
[1906] App. Cas. 81, relying upon
Bealey v. Shaw, 6 East, 208, as be-
ing entirely consistent with the mod>
em rule of riparian rights when prop-
erly understood.

20 Dumont v. Kellog, 29 Mich. 420,
18 Am. Bep. 102.

9 267

INTRODUCTORY.

409

in the following words: ** .... We may dismiss from the mind
the fact that the plaintiff had first put the waters of the stream
to practical use, since that fact gave him no superiority in right
over the defendant. The settled doctrine now is that priority
of appropriation gives to one proprietor no superior right to that
of the others^ unless it has been continued for a period of time,
and under such circumstances as would be requisite to -establish
rights by prescription."^*

§ 267. Same. — The denial of effect to priority at common law
is a denial of its effect against a riparian owner. Against one hav-
ing no right as riparian owner, priority of possession gives a better
right by a rule of universal application in the common law. As was
said in Mason v. Hill: ''In this, &s in other cases of real prop-
erty, possession is a good title against a wrongdoer." The fact
that a diversion violates riparian rights can only be set up by the
injured riparian proprietor. We have already cited numerous de-
cisions applying to all branches of the law of waters that a con-
troversy must be decided upon the relative rights of parties between
themselves, regardless of the fact that a stranger to the controversy
has a better right than either disputant.^ In a recent California
case Mr. Justice Shaw said: ''The right cannot be disputed except
by one who has or claims a superior right or interest, and by him
only so far as there is a conflict. It cannot be vicariously con-
tested by another on behalf of the owner of the better right. "^"^

Quaere, whether such a possessory right can be called an " ap-
propriation" at the present day. It is defeasible at suit of a
riparian proprietor, whereas an appropriation, strictly speaking,
is a title against the world, indefeasible during beneficial use.
The term "appropriation" has now a historical significance in
the West, denoting absolute title against the world. Originally
an appropriation was but a possessory right, defeasible by the
United States as riparian proprietor, but the United States has

21 Citing Piatt v. Johnson, 15
Johns. 213^ 8 Am. Dee. 233; Tyler
V. Wilkinson, 4 Mason, 397, Fed.
Cas. No. 14,312; Oilman v. Tilton,
5 N. H. 231; Pugh v. Wheeler, 19
N. C. (2 Dev. & B.) 50; Hartzall
V. SiU, 12 Pa. St. 248; Gould v. Bos-
ton Dock Co., 13 Gray, 442; Wood
V. Edes, 2 Allen, 578; Parker v.
Hotchkiss, 25 Conn. 321; Heath v.

Williams, 25 Me. 209, 43 Am. Dec.
265; Snow v. Parsons, 28 Vt. 463,
69 Am. Dee. 723; Bliss v. Kennedy,
43 m. 67; Cowles v. Kidder, 24 N.
H. 378, 57 Am. Dee. 287. See, also,
McCarter v. Hudson etc. Co., 70 N.
J. £q. 695, 65 Atl. 489.

22 Supra, see. 195.

28 Duckworth v. Watsonville etc.
Co., 150 Cal. 520, 89 Pac. 338, at 343.

410

THE COMMON LAW OF RIPARIAN RIGHTS.

9 268

now by statute converted possession into title on public lands,
and it is this title that is called ** appropriation" in the Western
law.-*^* The term ** appropriation*' has come to have a signifi-
cance including title against riparian owners as well as others.
The writer recalls only one case in the California court where a
case was perhaps decided on the ground of mere possession whei*e
the stream was wholly on private lands.^*> Such a state of facts
•is exceptional, and seldom arises regarding diversions on streams
wholly on private land in a State recognizing riparian rights. The
riparian rights are usually asserted on private land.

§ 268. Riparian Bights Under the Oalifomia Doctrine.— Under
the California doctrine the system of appropriation and that of
riparian rights occupy co-ordinate positions, as elsewhere set forth.
The two systems come in contact in many places, such as where
riparian rights and rights \)f appropriation are claimed by the
same person,^ or where there are conflicts between appropriators
and riparian proprietors on the same stream.^

It is frequently said that in applying the common law to irriga-
tion the California court (and similar courts) modified or changed
the conmion law; that permitting irrigation by a riparian pro-
prietor is peculiar to the West. Thus in Harris v. Harrison ^ it is
said : •* * But in some of the Western and Southwestern States and
. Territories, where the year is divided into one wet and one dry sea-
son, and irrigation is necessary to successful cultivation of the soil,
the doctrine of riparian ownership has, by judicial decision, been
modified, or, rather, enlarged, so as to include 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 ." ^r g^^t

23a See pp. 12, 65, 142, supra,
**We hold the absolute property in
such cases to pass by appropriation
as it would by grant." Ortman v.
Dixon, 13 Cal. 33.

2Sb Vernon Irr. Co. v. Los Angeles,
106 Oal. 237, possibly.

24 Ante, sec. 72.

25 Supra, sees. 54, 55; infra, sees.
331-334.

ai 93 Cal. 676. 29 Pac. 324.

27 Also, Wiggins ▼. Museupiabe ete.
Co., 113 Cal. 182, 54 Am. St. Hep. 348,
45 Pac. 160, 32 L. B. A. 667; Bath-
gate V. Irvine, 126 Cal. 136, 77 Am.
St. Bep. 158, 58 Pac. 442; Katz v.
WaUdnshaw, 141 Cal. 116, 99 Am. St.
Bep. 35, 70 Pac. 663, 74 Pac. 766, 64
L. B. A. 236 (per Mr. Justice Shaw) ;
City of Los Angeles v. Los Angeles
etc. Co., Cal. Sup., Jan. 23, 1908;
Lobdell V. Simpson, 2 Nev. 274, 90
Am. Dec. 537, and the- decisions of the

§ 268

INTRODUCTORY.

411

in Lux y. Haggin ^ the question is thoroughly examined, and it is

shown that there is nothing in this peculiar to the West. And in
Nebraska^ the court says that the modification is only apparent
and not a real departure, and in Washington the court says:^
''It is suggested on behalf of the appellants that the use of water
for irrigation was practically unknown to the common law. But,
while it may be true that it is seldom necessary or desirable to ir-
rigate land in England by artificial means, yet it appears that a
reasonable use of running streams for that purpose by riparian
proprietoft is recognized by the courts of that country. It is ex-
pressly so stated in Gould on Waters,^^ where a number of English
cases are cited; and in Pomeroy on Riparian Rights ^^ it is de-
clared that the common-law rule that every riparian proprietor
has an equal right to the use of water as it is accustomed to flow,
without diminution or alteration, is subject to the well-recognized
limitation that each owner may make a reasonable use of the water
for domestic, agricultural and manufacturing purposes; and the
author there cites several English and many American decisions
in support of that declaration.'' ^ And the Oregon court,^ citing
many cases, says: **It is accordingly now quite generally held in
this country and in EngVand, that, after the natural wants of all
the riparian proprietors have been supplied, each proprietor is en-
titled to a reasonable use of the water for irrigating purposes."
And another authority declares: **The right at common law of a
riparian proprietor to make a reasonable use of the waters of a
natural stream for irrigation purposes is well settled, both in Eng-
land and in the United States."^ A leading case in England
(comparatively early) recognized irrigation as proper,^ as' did
another in Massachusetts,^'^ both of which are leading cases upon

States following the Colorado doctrine
rejecting riparian rights in toto
(qnoted supra, sec. 16) on the ground
that the common law is destructive of
irrigation.

28 69 Cal. 255, at 398 et seq., ]0
Pac. 674.

20 Meng V. Coffey, 67 Neb. 500,
108 Am. St. Rep. 697, 93 N. W. 715,
60 L. R. A. 910.

30 Benton v. Johncox, 17 Wash.
277, 61 Am. St. Rep. 912, 49 Pac.
498, 39 L. R. A. 107.

31 Section 217.

32 Section 125.

33 Citing, also, 2 Washburn on Real
Property, 5tn ed., pp. 367, 36^ ; Gould
on Waters, sec. 205; Lux ▼. Haggia,
supra, and cases cited; Union Mill
& Mining Co. v. Ferris, 2 Saw. 177,
Fed. Cas. No. 14,371.

<»4 Jones V. Conn, 39 Or. 30, 87
Am. St. Rep. 634, 64 Pac. 855, 65
Pac. 1068, 54 L. R. A. 630.

3B 17 Am. & Eng. Ency. of Law

487.

36 Embrey v. Owen, 6 Ex. 352.

37 Elliott r. Fitchburg Ry., 10
Cush. (Mass.) 193, 57 Am. Dec. 85.

il2 THE COMMON LAW OF RIPARIAN RIGHTS. § 268

the common-law rules. In Year Book XII, Bdw. Ill (A. D. 1331) ,»«
plaintiff complained of diversion from his meadow of a stream
''with which water he was wont to water his cattle, namely, horses,
sheep and cows, and also to fish therein and brew therewith, and ir-
rigate [adaqaare] the aforesaid meadow in time of drought,*' and
the assize passed for plaintiff. In another very early case^ it
was said: **Now the plaintiff was not hurt as to culinary purposes,
nor irrigation, nor as to his cattle nor drainage," tod an injunc-
tion was refused. The right to irrigate is recognized in Kent's
Commentaries,*^ ** provided the water be used by one reasonably"
and not so as to essentially destroy the same use of it by other
riparian proprietors. As the Kansas court says: **The authorities
are unanimous to the effect that the use of water for irrigation
is one of the common law rights of a riparian proprietor."*^

Upon the entire subject of riparian rights the case of Lux v.
Haggin *^ is the leading case in California, though the actual de-
cision did not determine the rights of riparian proprietors inter se
in that case.*^

The California law has had to thread its way through a mass
of difficulties. The high state of irrigation, and the variety of
power and mining problems, presented, in a State of such varied
natural conditions, difficulties of adjustment as unparalleled as the
resources of the State itself. The prosperity of the State owes
much to the foresight and yet conservatism which the supreme
court has always shown in dealing with this subject; and while
many problems remain yet unsolved, they may be confidently left
to the court.

There are several matters common to the use of water under
both the systems of appropriation and riparian rights. Such, for
example, is the law of ditches and artificial watercourses. Having
already considered that fully under the law of appropriation no
more is said in the following chapters. As a general thing, how-

38 Cf. Lux V. Haggin, 69 Cal. 389, *2 The court said: "It will be
evidently referring to a different case, noted (since the defendant is not a

39 Elmhurst v. Spencer, 2 Macu. ?;iP"i*° proprietor, unless made sueh
^ Q ^5 * ' by the mere fact of its appropna-

^^' ' __ -« T. f J tion) that the exigencies of the pres-

40 Part VI, sec. 52, Browne s ed., ^^^ ^^^^ ^^ ^q^. imperatively demand

P* "^^' that we shall here determine the re-

40a Clark v. AUaman (Kan.)y 80 spective rights of riparian owners as

Pac. 584. between themselves." Lux v. Hag-

41 69 Cal. 256, 10 Pac. 674. gin.

§ 268 INTRODUCTORY. 413

ever, cases decided under the law of riparian rights have been ex-
cluded from the first part of this book; and the converse is true
of what follows, even though in some points the rule be the same
under both systems.

414 THE COMMON LAW OF RIPARIAN RIGHTS'. S 269

CHAPTER II.

FIRST PRINCIPLES.

A. GENERAL.

5 269. The civil law.

S 270. The common law borrowed from the civil law.

S 271. The corpus of naturally running water is not property.

§ 272. Same.

§ 273. But one may have a right to take it — A usufructuary right.

S 274. When taken the water is private property.

§ 275. These principles developed.

B. ACCESS TO THE STREAM.

S 276. Only riparian proprietors have access.
§ 271". Same.
S 278. Same.

C. '*CU.JUS EST SOLUM'' MAXIM NOT APPLIED.

§ 279. The '*cujus est solum*' doctrine.

§ 280. Same,

fi 281. Same.

S 282. Results.

A. GENERAL.

•

§ 269. The Civil Law. — In the Institutes of Justinian it is
declared, concerning things: '*They rfre the property of some one
or no one. ' * ^ As expressed in the Institutes, ' * By natural law all
these things are common, viz.: air, running water, the sea and
as a consequence the shor^ of the sea.''^ Commenting on this
Vinnius says : ' * Things common are such because, while by nature
being things everyone has use for, they have not, as yet, come into
the ownership or control of anyone."^ That is, they are the
property of no one, within the first quotation from the Institutes.

1 **Vel. in nostro patrimonio vol ian, lib. 2, tit. 1, sec. 1. Mr. Ware
extra nostrum patrimonium. " As (Ware's Roman Water Law) gives
translated in Lux v. Haggin, 69 ('al. chiefly the Pandects^ and does not
315. give this passage in the Institutes.

2 ' ' Et quidem naturali jure, com- ^ ** ' Communia sunt quae a natura
munia sunt omnia haec, aer et aqua omnium usum perdita, in nullius ad-
profluens, et mare, et per hoc, Ht- hue ditionem aut dominium pervener
tora maris.'' Institutes of Justin- unt. "

§ 269

FIRST PRINCIPLES.

415

Vattel says: '* There are things which in their own nature can-
not be possessed. There are others, of which nobody claims the
property, and which remain common, as in their primitive state
when a nation takes possession of a country « the Roman lawyers
called these things res communes, things common: such were, with
them, the air, the runnivg water, the sea, the fish and wild
beasts.'** Puff^ndorflf says: ** 'Tis usual 1> attribute an exemp-
tion from property to the light and heat of the sun, to the air,
to the running water, and the like."^ A modem French, work
says : ' ' The things which, suited alike to the use of all men, are not
susceptible of exclusive possession cannot, on this account, form
the object of a right of property. These things, which the Roman
law called res omnium communes, are the air, the deep sea, and
running water as such; that is to say, in the sense that one sees
it in its state of continual motion and ceaseless change."* Like-
wise the Spanish law.'' In an early English case the civil-law
authorities are stated as follows: *'By the Roman law, running
water, light and air were considered as some of those things which
had the name of res communes, and which were defined * things
the property of which belongs to no person.' "® In a leading
English case where the civil-law authorities are set forth and ex-
amined the following is given as the Roman law: **No one had
any property in the water itself, except in that particular portion
which he might have abstracted from the stream, and of which he
had the possession ; and during the time of such possession only." ®
The result of these authorities is that the corpus of naturally run-

4 1 Law of Nations, c. 20, Chitty's
Translation, 109, sec. 234.

5 Puffendorff, lib. IV, c. V, sec. II,
and see Id., lib. Ill, c. 3, sees. 3, 4.
See, "also, to the same effect, Domat 's
(Tivil Law, sec. 416.

« Droit Civile Prancais, by Au-
brey & Rau, 4th ed., vol. 11, p. 34.

''Les ehoses qui, destinees a
1 'usage eommun de tous les hommes,
ne sont pas susceptibles de posses-
sion exclusive, ne peuvent, par cela
mSme, former 1 'object du droit de
propri6t4. Ces ehoses, que le droit
Boman appellait res omnium com-
muties, sont I'air, la haut mer, et
I'eau courante comme elle; c'est-a-
dire en tant qu'on Ten visage dans

son etat de mobility continue et de
ronouvellement .incessant. ' '

7 In Febrero Novisimo ** cocas
comunes" are defined as those "qui
sirven a los hombres y demas vivien-
tes eomo el aire, el agua llovediza, el
mar y sus riberas." T. 1, lib. 2, tit.
1; Lux V. Haggin, 69 Cal. 316.

8 Liggins V. Inge, 7 Bing. 692.
The passage adds: "but the.use to
all." We omit it from the text be-
cause it was declared in Mason v. Hill
to be a misstatement of the civil law,
and the other civil-law authorities in
the text show that the ad<lition of
tihose words was, as Ma.<<on v. Hill
says, erroneous.

9 Lord Denman in Mason v. Hill,
5 Barn. & Adol. 1.

416

THE COMMON LAW OF RIPARIAN RIGHTS.

S 269

ning water — the water itself, its particles or aggrregate dropi
was thus classed in the Institutes and civil law-writers with the

■

air and with those things that cannot be owned.

But the civil law distinguished the use of the water from the
water itself. While the naturally flowing water thus was without
an owner and nobody's property, the civil law recognized a right
of property in its use, which was called a ** usufruct."'®

This usufruct belonged to those who had access to the wat^r,
and only those who had access to it by virtue of ownership of
riparian land (unless by special governmental concession) could
take and use it. Esriche (**Aguas") says that waters of fountains
and springs as they go out from thence ** become running waters,
aqua proflueus, and pertain like common things (cocas comunes)
to the first who occupies them, so far as he has need of them.
The first who can occupy them are the owners of the estates which
they bathe or cross." He then treats of the rights of riparian
proprietors to the use of the waters as between themselves. And
he elsewhere says: ''If the acequia shall cross the land of another,
or the crown lands, or the land common to the inhabitants of the
pueblo, a license from the private owner, or the king, or from the
town council is indispensable."'^ Under the Mexican law **the
waters of innavigable rivers, while they continued such, were sub-
ject to the common use of all who could legally gain access to them
for purposes necessary to the support of life. ' ' ''•

The riparian proprietors (having the sole right of use because of
the sole right of access given by their inclosing lands, in the ab-
sence of governmental concession to others) could not any one of
them make exclusive use of the tstream. The Code Napoleon pro-
vides:'^ *'He whose property borders on a running water, other
than that which is declared a dependency on the public domain by
article 538, may employ it in its passage for the watering of his
property. He whose estate is intersected by such water, is at

10 Citations infra, this section.

n Esriche, * 'Acequia.*'

Ha Lux T. Haggin, 69 Cal. 255, 10
Pac. 674. That the right to take
and use the waters at eivU law was,
as at common law, in the riparian
proprietors because of their right of
access, see Lord Kingrsdown in Miner
V. Gilmour, 12 Moore P. C. 131, con-

cerning French law; Van Breda v.
Silberbaur, L. R. 3 P. C. 94; Com-
missioners of Hoek v. Hugo, L. R.
10 App. 345, the* latter two concern-
ing Roman-Dutch law of Cape of
Good Hope. We cite these on the
authority of Lux v. Haggin, wherein
they are given.

12 Code Napoleon, art. 644. Italics
ours.

§ 270

FIRST PRINCIPLES.

417

liberty to make use of it within the space through which it runS;
but on condition of restoring it, at the boundaries of his field, to
its ordinary course/' The Louisi^a Code likewise says:^^ ^^He
whose estate borders on running water, may use it as it runs, for
the purpose of watering his estate, or for other purposes. He
through whose estate water runs, whether it originates there or
passes from lands above, may make use of it while it runs over his
land ; but he cannot stop or give it another direction, and is bound
to return it in its ordinary chxmnel where it leaves his estate." ^^
Commenting upon the above passage in the Code Napoleon, a
French -^ter says: '*The rights of use mentioned in Article 644
are given only to the riparian proprietors; that is, to the proprie-
tors of the estates contiguous to the flow of the water. ' ' ^^ This
right of use was called, in the civil law, a ** usufruct." ^*

Speaking of the civil law regarding the use of waters, Mr:
Yale" says: ** These rights do not, as has been seen, differ sub-
stantially, so far as private property is concerned, from the com-
mon law."

§ 270. The Common Law Boirowed These Civil-law Ideas. —
The early common-law cases already referred to seeming to uphold
the right of appropriation did so by accepting the civil-law idea
that the corpus of the water was not, while flowing naturally, the
property of anyone. They erroneously considered its use to be
free to all, and allowed* it to be taken by the first comer ; this
last being rejected in Mason v. Hill, but not changing the first
principle. In Mason v. Hill, Lord Denman sets forth the civil
law in th^ passage already quoted, and in Embrey v. Owen,
Baron Parke takes that civil-law statement (that the corpus of
the water was not property while flowing naturally), and accepts
it as stating the common law also.^^

18 Louisiana Code, art. 657. Italics,
ours.

14 Par Autorite, New Orleans, 1838.

It may be noted that both these
passages from civil-law codes per-
mitted the use of water for irrigation.

15 "Les droits d 'usage mentionn^s
6n I'art 644 ne sent accord^s qu'aux
riverains, c 'est-ft-dire, aux propri6-
taires de fonc^s contigus au cours
d'eau,** Droit Civile Francais, by

Water Rights — 27

Aubrey & Bau, 4th ed., vol. Ill, p.
47.

16 The Institutes of Jufltinian, lib.
I, tit. rV, V ; Pandects, lib. VII. See
Noodt's **De UsufruetuV (opp- torn.
1, pp. 387-478) ; Institutes of Gaiiis,
**De Bebus Incorporalibus, ' ' sec. 12,
from which Institutes of Justinian, V,
is copied.

17 Yale on Mining Claims and
Water Bights, p. 153.

18 Quoted infra, sec. 278.

418

THE COMMON LAW OF RIPARIAN RIGHTS.

S 270

In this the common law, as in most branches of the law of waters,
is founded on the civil law. The connection can be directly traced.
The passage in the Institutes abpve quoted classing running
water, as a substance, with the air, is transcribed by Bracton
as the law of England, saying: ^^''Naturali yero jure communia
sunt omnia haec — aqua profluen^, aer, et mare, et littora maris,
quasi maris accessoria." Fleta, likewise borrowing from the In-
stitutes, says:^ "Aliae communes sunt, ut aer, mare, et littora
maris; aliae publicae, ut jus piscandi, et applicandi fidmina et
portus." Prom these partly, but probably more from the civil
law-writers directly, this passed into the early English cases,^^ from
them into Blackstone,^ and from Blackstone and Mason v. Hill
into modem law. It is the same direct connection as that shown
in the law of accretion.^ The common law of fishing is likewise
based upon the civil law.^ The name ** riparian proprietor"
is itself borrowed from the civil law. "The owners of water-
courses are denominated by the civilians riparian proprietors, and
the use of the same significant and convenient term is now fully
introduced into the common law."^ And the writer has had
occasion to examine recent French cases where it will be found the
courts discuss the right of the **proprietaire riverain." In Miner
V. Oilmour,^ Lord Kingsdown said the French law and the ocan-
mon law are not materially different.

The passages above given from the civil law show the resemblanee
of the common law to it, and that the modern common-law cases
went directly to the civil law for their fundamental ideas upon
the law of running waters will be seen in some other leading com-
mon-law authorities herein below quoted. An examination of the
first principles of the common law shows them to be borrowed
from the civil law. We proceed now to those first principles.

10 Bracton, lib. 2, f. 7, see. 5.

20 Fleta, 3 lib. cap. 1, 8. 4.

21 Liggins V. Inge, 7 Bing. 692, and
Williams v. Moreland, 2 Barn. & 0.
910, both quoted in the second section
following.

23 II Blackstone, 14, 395, also
quoted below.

28 Lindley, L. J., says in fV>Bter v.
Wright, 4 C. P. D. 438, speaking of
the law of accretion: ''Our law may
be traced back through Blackstone

(Vol. II, c. 16, pp. 261, 262), Hale
(De Jure Maris, cc. i, 6), Britton (Bk.
II, c. 2.), Fleta (Bk. Ill, c. 2, sec. 6,
etc.), and Bracton (Bk. H, c. 2) to
the Institutes of Justinian (Just. II,
1, 20), from which Bracton evidently
took his exposition of the subject."

24 Schultes' Aquatic Rights, p. 1.

25 Angell on Watercourses, 6th
ed., sec. 10.

26 12 Moore P. C. 156.

§§ 271, 272 FIRST PRINCIPLES. 419

§ 271. The Corpus of Naturally Flowing Water is not Prop-
erty.— ^The law distinguishes between the corpus or particles of

■

liquid, and the usufructuary right with respect to it.

While in the natural stream, the law says the particles are not
the subject of private ownership. The California court says:
**This court has never departed from the doctrine that running
water, so long as it continues to flow in its natural course, is not,
and cannot be made, the subject of private ownership."^ A
claim to the corpus of water of a river was said in the House of
Lords to be **so repugnant to the general law of rivers that Jt is
surprising. " 28 Another case says: **No one, therefore, can have
an exclusive right to the aggregate drops of water that compose
the mass thus flowing, without contravening one of the most
peremptory laws of nature."^ The point of view is that water
in its natural stream is like the air, a wandering, ownerless thing,
ever changing its form, and . neither a real property nor per-
sonal property; being not the subject of ownership at all. The
particles of the naturally flowing liquid are in the view of the
law in a class with the particles of air in the atmosphere. In
the old case of Shury v. Piggott,^ aqua profluens was compared
to light and air, which "aut invenit aui facit viam/' Says Black-
stone, speaking of the very elements of fire or light, of air and of
water: ''A man can have no absolute permanent property in these,
as he may in the earth and land, since these are of a vague and
fugitive nature ";^^ and it has been said:^ **The water which
they claim a right to. take [from a spring] is not the produce of the
plaintiff's close ; it is not his property ; it is not the subject of prop-
erty. Blackstone, following other elementary writers, classes water
with the elements of light and air. ' ' This is the classification of the
Institutes above quoted.^

§ 272. Same. — Confusion appears in the authorities upon the
use of the terms that waters are ^'puhlict juris,'' ^*res communes/'
^'bonum viicans."^ ^'Publici juris" is most frequently used, and

27 Kidd T. Laird, 15 Cal. 161, 76 • ®* Blackstone, bk. II, c. XXV, p.
Am. Dec 472. 3^5.

" 28 mite V. White, [1906] App. ^ 1^269.^'"'^' ^ ^^' * ^^ ^^^'

^®- ®^ , 84 Seej for example, Mason v. Hill,

2» Gibson, C. J., in Mayor v. Com- 5 Barn. & Adol. 1 ; Embrey t. Owen,

Bfiissioners, 7 Pa. St. 363. e Ex. 352; Van Sickle ▼. Haines, 7

80 Poph. 169. Not. 249.

420 THE COMMON LAW OF RIPARIAN RIGHTS. S 272

is frequently used in cases to-day.^ It is used in the civil law.
What may be its correct meaning is not of great importance, since
the meaning intended to be conveyed, whether a correct use of the
term or not, is that no individual owns the corpus of flowing water
so long as flowing naturally, and that it passes into individual
ownership only when actually taken into possession and severed
from its natural watercourse.

The proposition that water is '^publici juris'' is borrowed from
the civil law, says Lord Denman in Mason v. Hill.^ The leading
authority for this statement is the old case of Liggins v. Inge,^
saying: ** Water flowing in a stream, it is well settled by the law of
England, is publici juris. By the Roman law, running water, light
and air were considered as some of those things which had the name
of res communes, and which were defined 'things, the property of
which belong to no person, etc." In the case of Williams v.
Moreland,^ the expressions are used, ** Flowing water is origin-
ally publici juris," and ** running water is not in its nature pri-
vate property."^® In another case: ** Plowing water, as well
as light and air, are, in one sense, ^publici juris,' They are
a boon from Providence to all, and differ only in their mode of en-
joyment. Light and air are diffused in all directions, flowing
water in some."*^ Blackstone says: "For water is a movable,
wandering thing, and must of necessity continue common by the
law of nature ; so that I can only have a temporary, transient u^su-
fruciuary property therein."*^

It will be noted that in one of these quotations it is said that
running water is *^res communes," and Blackstone says, ** water
is common," while Liggins v. Inge uses this as synonymous with
''imblici juris." *^ But whether called '^publici juris" or ^'res

3S E, g,, United States t. Oonmd ^i Blackstone 's Commentaries, 18.

Inv. Co. (Or.), 156 Fed. 127. See *2 in an old annotation to the Pan-

ante, sec. 36, Property of Public. dects of Justiiuan (Pand. 1, lib. tit. 8,

86 5 Barn. & Adol. 1. ^ited in Schultes' Aquatic Bights, p

37 7 Bing. 692. f > ^^% ^^'^ ''pubHc- is expressly

* declared synonymous with "com-

38 2 Bam. & C. 910. mon.'' Sir Matthew Hale uses the
8» In Manning v. Wasdale, 5 Ad. terms ** publici juris'* and "com-

& E. 758, at 762, water is declared mon'^ as synon3rmous, saying (in his

** publici juris," Analysis of the Civil Part of the

40 Adding that the proprietor of Law) : ' ' These things that the publici

the land through which it passes only juris are such as, at least in their own

has use of it. Wood v. Waud, 3 Ex. use, are common to all the King's

748. subjects."

S 273

FIRST PRINCIPLES.

421

cammunes,'* it is now settled*^ that either form of expression
means only that the corpus of naturally flowing water is not the
subject of private ownership, and is not property in any sense of
the word. After setting this forth Lord Denman said in Mason
V. Hill: ^ **We think that no other interpretation ought to be put
upon the passage in Blackstone, and that the dicta of the learned
judges above referred to, in which water is said to be publici juris.
are not to be understood in any other than this sense."

In American cases, the phrase "publici juris'' is also used. In
the leading case of Elliott v. Fitchburg R. Co.^ Shaw, C. J., said :
**The right to the use of flowing water is publici juris, and com-
mon to all the riparian proprietors. " '•^ Justice Story also said in
Tyler v. Wilkinson ^^ that the water is conmion to all.**®

All these phrases are primarily nothing more than expressions
of the rule that the water itself is not in 'its nature private prop-
erty while flowing naturally, but is in a class with the air. This
principle, Dorrowed from the Institutes, is likewise fundamental in
the common law.*^

§ 273. But One may Own a Bight to Take It— The Law Becog-
nizes a UBufmctuary Bight. — While the law does not regard the
liquid itself as property while flowing naturally, any more than
the air, it recognizes, nevertheless, a very substantial right in its
use and flow ; the right to have the liquid flow and to use and take
of it; which the law calls **the usufructuary right," or *'the water
right.'' **A right may be acquired to its use which will be re-
garded and protected as property, but It has been distinctly de-
clared in several cases that this right carries with it no specific prop-
erty in the water itself.''^ And says Blackstone : ^^ **For water
is a movable, wandering thing, and must of necessity continue

^ See Mason v. Hill, 5 Barn. &
Adol. 1 ; Embrey v. Owen, 6 Ex. 352,
discussing the use of these words.

44 5 Barn. & Adol. 21, 27.

45 10 Gush. (Mass.) 191, 57 Am.
Dec. 85.

4« Publici juris. Shaw, (\ J., in
Carey v. Daniels, 8 Met. (Mass.) 466.

47 4 Mason, 397, Fed. Ca&. No..
14,312.

4S In view of the fact' that the law
of appropriation arose in California
as a part of the law of the public
domain, it may be interestinjj in this

connection to note that in a leading
early California case Judge Sander-
son, C. J., described mines on the
public domain as " *publi<!i juris/
and open to the appropriation of tho
next comer." Morton v. Solambo
xMin. Co., 26 Cal. 527.

49 Likewise under the law of appro-
priation, borrowing from the common
law. Ante, sees. 36, 59, 60.

50 Kidd V. I>aird, 15 Cal. 161, 76
Am. Dec. 472.

51 2 Blackstone 's Commentaries 18.

THE COMMON LAW OF RIPARIAN RIGHTS.

§ 274

common by the law of nature ; so that I can only have a temporary,
transient usufructuary property therein." And says • Story :^-
"But, strictly speaking, he has no property in the water itself, but
a simple use of it as it passes along." And Kent: ® **He has no
property in the water itself but a simple usufruct as it passes
along. " ** * * The law does not recognize a riparian property right
in the corpus of the water.*^ The riparian proprietor does not own
the water. He has the right only to enjoy the advantage of a rea-
sonable use of the stream as it flows by his land, subject to a like
right belonging to all other riparian proprietors,"*® says the
Nebraska court.®^ **The rights of a riparian owner .... do not
include a proprietorship in the corpus of the water. His right to
the water is limited to its use," etc.^

This usufructuary right, or ** water right," is the substantial
right with regard to flowing waters ; is the right which is almost
invariably the subject matter over which contracts are made and
litigation arises. It is not an ownerhsip in the water itself; it is
merely a privilege to use the water, and hence purely incorporeal,^

The term "usufruct" is taken from the civil law.®®

§ 274. When Taken, the Substance Becomes Private Property.

All law (borrowing from the civil law) is but a development of the
transition from nobody's property to private property, by capture
and severance from the natural stream. While naturally flowing
the substance is not property. The right may exist to take of it
(called usufructuary). The part taken is the private property
of the taker while in his possession.

The definition of private property is the same under all law.
**The ownership of a thing is the right of one or more persons to
possess and use it to the exclusion of others. In this code, the

62 Tyler v. Wilkinson, 4 Mass. 397.
Fed. Caa. No. 14,312.

53 3 Com. Marg., p. 439.

M Usufructuary. Sweet v. City of
Syracuse, 129 N. Y. 316, 27 N. E.
1081, 39 N. E. 289; Wyandonch Club
T. Davis, 33 App. Div. 598, 53 N. Y.
Snpp. 993.

85 Citing Vernon Irr. Co. v. Los
Angeles, 106 Ckl. 237, 39 Pac. 762.

56 Citing Kinney on Irrigation, sec.
59 ; Gould on . Waters, sec. 204 ; Em-
brey y. Owen, 6 Ex. 353.

57 Crawford v. Hathaway, 67 Neb.
325, 108 Am. St. Eep. 647, 93 N. W.
781, 60 L. B. A. 889.

58 Gould V. Eaton, 117 Cal. 542, 49
Pac. 577, 38 L. R. A. 181. Compare
the Mexican law (HaU's Mexican
Law, sec. 1392), speaking of a ripa-
rian proprietor owning both banks:
' ' It is not his own as to property, but
only as to the use which he can make
of it in its passage."

59 Swift V. Goodrich, 70 Cal. 103,
11 Pac. 561.

eo Supra, sec. 269.

§ 274

FIRST PRINCIPLES.

423

thing of which there may be ownership is called property. There
may be ownership of all inanimate things which are capable of ap-
propriation or of manual delivery. " ^»

. Following the particles of the liquid from thie stream into the
ditch, there then has come a change in the ''wandering" (as Black-
stone says) of the liquid that has been taken into the ditch. It is
like the change ®^ regarding wild birds caught in a snare, wild
animals caged, fish caught in nets. Before capture, none of these
is regarded as property, real or personal; being wandering,
ownerless things; while wandering at large they are nobody's prop-
erty,*^ but after capture, they become the private property of the
taker. So with the particles of water that have passed into private
control in a reservoir, ditch or other artificial appliance. The par-
ticles have been taken from their natural haunts, so to speak, and
passed into private possession and control, and become private
property.

In the civil law it is said: *'Upon these principles, running
waters are held by the Roman juris-coiisulti to be common to all
men. But it also follows that this decision does not apply to
waters, the appropriation of which (to the exclusion of the com-
mon enjoyment) is necessary for a certain purpose, as water in-
cluded in a pipe or other vessel for certain uses.''^ Vinnius says
in commenting on the passage in the Institutes above quoted re-
garding air; running water, and the sea: ''First of all, these
things are in their nature suited to the common use of all: and
next, in case any of these things is such that in its nature it can
be taken into possession, it belongs to the possessor so far as he
does not injure the general use by such occupation. '*•* And
commenting upon the same passage in the Institutes a Scotch case
says: '^ Water drawn from a river into vessels or into ponds he-
comes private property: but to admit of such property with re-
spect to the river itself, considered as a complex body, would be
inconsistent with the public interest, by putting it in the power '

ooa Cal. Civ. Code, sees. 654, 655.

01 Judge Field, in Spring Valler
W. Yl. V. Schottler, 110 U. S. 347,
873, 28 li. ed. 173, 4 Sup. Ct. Rep. 48,
quoted «iipra, sec. 153, and Black-
Btone, infra,

•8 People T. Truckee etc. Co., 116
Cal. 397, as to the fish in the stream.
Ex parte Maier, 103 CaL 476.

W Bowjer's Commentaries on Civil
Law, p. 61.

<M ''Primum communis onmium est
harum rerum usus, ad quam natara
eomparatae sunt, tum siquid earum
rerum per naturam oceupari potest, id
eatenus oecupantis fit, quatenus ea
oecupatione usus ille promiseuus non
laeditur.'' Quoted in Mason v. Hill,
5 Barn. & Adol. 1.

424

THE COMMON LAW OF RIPARIAN RIGHTS.

S 274

of one man to lay waste a whole country." ** The civil law is stated
in Mason v. Hill to be: '*No one had any property in the water
itself except in that particular portion which he might have ah-
stracted from the stream and of which he had the possession and
during the time of such possession only."

The common law is stated in identical terms. '*None can have
any property in the water itself, except in the particular portion
which he may choose to abstract from the stream, and take into
his possession, and that during the time of his possession only ." ^
And Blackstone ^'^ classes naturally running water with "the very
elements" of fire, light, and air, and with **the generality of those
animals which are said to be ferae naturae, or of a wild and un-
tamable disposition," which may become a man's property by
capture. As to water, a man takes it into his possession. Black-
stone sajTs, by his mills or other conveniences.^ The comparison
to animals ferae naturae is also made by Judge Field in a pas-
sage elsewhere quoted.^ Chancellor Kent says:^^ "The elements
of air, light, and water are the subjects of qualified property by
occupancy," and then, in the same paragraph, proceeds to the law
of wild animals, as based on the same principle.''^

The only right one can have in naturally running water is thus
that of having it flow to him, and of taking it into his possession,
and thereby making, private property of a part of it, during the
time he holds it in his possession. The theory is clearly put by
the California court, saying: "He does not own the corpus of the
water, but incident to his riparian right is the right to appropriate

^ Magistrates v. Elphinstone, '3
Karnes' Decisions, 331.

«8 Baron Parke in Embrey v. Owen,
6 Ex. 352.

67 Bk. n, pp. 14, 395.

68 See, also, Kidd v. Laird, 15 Gal.
161, 76 Am. Dec. 472; Calkins v.
Sorosis etc. Co., 150 Cal. at 431, 88
Pac. 1094; Field, J., in Spring Val-
ley W. W. V. Schottler, 110 U. S. 347,
28 L. ed. 173, 4 Sup. Ct. Bep. 48,
quoted supra, sec. 153.

69 iSfttpro, sec. 153.

70 Pt. V, c. XXXV, p. 847.

71 In the Institutes the law of wild
animals is placed under the same title
as that aboye quoted referring to
€tq%M proftuens. Institutes of Jus-
tinian, Ub. II, tit. 1, sec. 12.

''Ferae igitur bestiae et volucres
et pisces, id est omnia animalia, quae
in terra, mari, caelo nascuntur, sim-
ulatque ab aliquo capta fuerint, iure
gentium statim' illius esse incipiunt;
quod enim ante nullius est, id natur-
ali ratione occupantis conceditur.
Nee interest, feras bestias et volucres
utrum in suo fundo quisque capiat, an
in alieno; plane qui in alienum
fundnm ingreditur venandi aut aucn-
pandi gratia, potest a domino, si is
provident, prohiberi ne ingrediatur.
Qniqnid autem eorum ceperis, eg usque
taum esse intelligitur, donee tua cus-
todia coercetur ; cum vero evaserit cus-
todiam tuam et in naturalem liberta-
tem se receperit, tuum esse desinit et
rursus occupantis fit." See Vattel,
quoted atipra, sec. 269.

§ 274 FIRST PRINCIPL15S. 425

a certain portion of it. It is only, I think, by some species of ap-
propriation that one can ever be said to have title to the corpus
of the water. The right of the riparian owner is" to the continuous
flow with a usufructuary right to the water, provided he returns
it to the stream above his lower boundary, and the right, as I
have said, to make a complete appropriation of some of it."''^

The individual particles so impressed and become private prop-
erty possess none of the characteristics of immovability that go
with ideas of real estate ; they are still always moving, though pri-
vately possessed, having, as particles, the characteristics of personal
property. The analogy to caged animals, snared birds, or fish
in a net, shoT^ well the point of view ; and the particles in the ditch,
now private property, are personalty. The authorities to this ef-
fect have already been given,''' and need not be here repeated. Ad-
ditional quotations will be there found.

It remains only to be said that this private property in the corpus
of the water severed from the stream is based entirely on posses-
sion and control of the particles, and ceases when the possession
and control cease. It is lost by escape of the water or its aban-
donment; whereupon the particles again cease to be his property,
and are again nobody's property.'^* The complete **life history"
of any specific particle of the water as distinguished from a usu-
fruct in the stream is hence contained in the following passage in
Blackstone : ^*

**But, after all, there are some few things, which, notwithstand-
ing the general introduction and continuance of property, must
still unavoidably remain in common ; being such wherein nothing
but an usufructuary property is capable of being had ; and, there-
fore, they belong to the first occupant, during the time he holds
. possession of them, and no longer. Such (among others) are the
elements of light, air and water; which a man may occupy bj'^
means of his windows, his gardens, his mills, and other conveniences ;
such also, are the generality of those animals which are said to be
ferae naturae, or of a wild and untamable disposition ; which any
man may seize upon and keep for his own use or pleasure. All
these things, so long as they remain in possession, every man has a
right to enjoy without disturbance; but if once they escape from

72 Vernon Irr. Co. v. Los Angeles, 74 Supra, sees. 233, 234, abandon-
106 Cal. 237, 256. ment.

73 Supra, sec. 154. 75 Bk. II. p. 14.

426 THE COMMON LAW OF RIPARIAN RIGHTS. S 275

his custody, or he voluntarily abandons the use of them, they return
to the common stock, and any man else has an equal right to seize
and enjoy them afterward."

To avoid misunderstanding, it must be well noted that this pas-
sage distinguishes the corpus of water from the usufructuary right
in the stream, and that when Blackstone here says that every man
has an equal right to seize and enjoy, he is referring to the par-
ticles or drops, which no man can trace or identify as having been
formerly in his possession, and which consequently, he can lay no
claim to because of such former possession. Instead, anyone to
whom the abandoned particles come may seize and use them in the
same manner as any other particles, and under the same considera-
tions as govern his right to such other. The escaped or abandoned
particles pass under any usufruct that may exist in the stream they
liave mixed with, be the owners of that usufruct who they may,
and without, for the present purpose, specifying who* the owners
of the usufruct may be. The statement applies only to the corpus
of the water (the ownership of the usufruct we shall deal with
shortly), and shows how the corpus is not property while flowing
naturally, is private property during capture, and again ceases to
be property when possession ceases.

§ 275. Systems of Water Law are but a Development of These
Three 'Tirst Principles'':

(a) The naturally flowing substance is not property, but is a
wandering, changing thing without an owner, like the very fish
swimming in it, or like wild animals, or like the air in the atmos-
phere.

(b) With respect to this substance the law recognizes a right to
use and take of it, and to have it flow to the taker so that it may
be used and taken.

(c) When taken from its natural stream, so much of the sub-
stance as is actually taken is captured, and, passing under private
possession and control, becomes private property during the period
of possession.''^

All systems of water laws are but a development of the ques-
tions, who may make this transition, and subject to what limitations.
There are several possible answers, with one of which we have al-

76 When possession is again lost by abandonment or escape, see 9Upfa,
sees. 233, 234.

9§ 276, 277 FIRST PRINCIPLES. 427

ready dealt It is the most obvious answer, namely, that the sub-
stance being without an owner, the first to take it shall have the
better right, being the answer of the old English eases and of the
modem Western law of appropriation. A second answer,- that of
the common law since Mason v. Hill, we proceed to set forth.

B. ACCESS TO THE STREAM.

§ 276. None but Biparian Proprietors Have Access to the
Stream. — ^At the time the riparian right came up for its real set-
tlement in Mason v. Hill, the situation was presented of this sub-
stance, said to be without an owner, flowing entirely through pri-
vate estates. In England all land has been in private ownership
for centuries. All streams, though not themselves a thing that
could be owned, were absolutely inclosed on all sides by privately
owned land. The owners of the inclosing land hence alone had ac-
cess to the water.

§ 277. Same. — ^Having alone the access, the riparian proprie-
tors alone have the right to take of the water. The stream
being absolutely inclosed between private estates, the common law
in this, as in all its branches, is zealous to protect those estates. It
is in the protection of landed proprietors that the common law
had its birth. Land has always been a subject upon which the
English common law looked as of primary importance, one of the
attributes of which is the fundamental right to protection against
trespass. All but riparian proprietors were thus shut out from the
stream, for all others would have to trespass on the riparian es-
tates to reach it; and the law prohibited the trespass for this or
any other purpose. ''It is quite impossible to contend that a man
can obtain a title by entering the close of another, tapping a spring
there, and conveying the water away to his own premises by a
drain."" The law of riparian rights grows out of this exclusion
of non-riparian owners because they have no access to the water.''*

Lawful access was given by the ownership of riparian land, and
being so given, was equally afforded to all the riparian owners,
since all have an equal right of access. They all consequently have

77 Baron Parke, in Cocker v. Cow- 78 Compare supra, Part I, o. V.

per, 5 Tyrw. 103.

428 THE COMMON LAW OF RIPARIAN RIGHTS. § 278

the same and equal right to take and use the water. There is a
perfect equality of right among all the proprietors, says Justice
Story .''^ Any damage which one may occasion to another must
be excused, if at all, only by the reasonable use of his own (the
riparian) land which gives the access, and this prohibits non-
riparian use even by a riparian proprietor or his grantee.

By contrast to the landed situation in England at the time of
Mason v. Hill, the vast unoccupied vacancy of the public domain
in the Pacific States at the time the Pioneers came to California
is striking. The streams, instead of being absolutely inclosed be-
tween private estates, were absolutely open and uninclosed, for
private proprietors di(i not exist. Hence, it was that the California
court felt free to depart from the common law as concerned streams
on the public domain, saying in the original precedent: ®® **It must
be premised that it is admitted on all sides that the mining claims
in controversy, and the lands through which the stream runs, are
a part of the public domain, to which there is no claim of private
proprietorship.*' There was free access to the streams to all.®*
And as the inclosing land has become private in California, re-
stricting this free access, the common law of riparian rights has
there returned.®^

§ 278. Same. — No higher authority concerning the nature of
the riparian right can be quoted than Baron Parke in Embrey
V. Owen ^ (he had also taken part in the judgment in Mason v.
Hill), in a passage classical upon the subject, placing the riparian
right as the right to enjoy the fruits of the i)rivilege (the usufruct)
which his right of access gives to the riparian proprietor, and there-
by to take into his own possession and make his private property
a portion of what is to be taken by all having equally the right
of access.®*

**The law as to flowing water is now put on its right footing
by a series of cases, beginning with that of Wright v. Howard,®^

70 Tyler v. Wilkinson, 4 Mason, are, to the exclusion of all others, the

397, Fed. Cas. No. 14,312. natural streams that do not form de-

80 Irwin v. Phillips, 5 Cal. 140, 63 pendences of the public domain."
Am. Bee. 113. Droit Civile Francais, by Aubrey &

81 Note, also, that the Code Na- Rau, 4th ed., vol. Ill, p. 46.
poleon (quoted supra) likewise ex- 82 See supra. Part I, c. V.
cepts streams on the public domain. ^a 6 Ex. 352.

**The waters mentioned in articles •**•* Italics ours.

644 and 645 [of the Code Napoleon] «-' X Sim. & St! 190.

§ 278 FIRST PRINCIPLES. 429

followed by Mason v. Hill,®* and ending with that of Wood v.
Waud,*' and is fully settled in the American courts.^ The right
to have the stream 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 publici juris, not in the sense that
it is a bonum. vctccms, to which the first occupant may acquire an
exclusive right, but that it is public and common in this sense only :
that all may reasonably use it who have a right of access to it)
that none can have any property in the water itself, except in the
particular portion which he may choose to abstract from the stream
and take into his possession, and that during the time of his pos-
session 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 abstraction of it would give a cause of action, would be
irrefragable ; 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, therefore, for an unreasonable and
unauthorized use of this common beneflt that an action will lie;
for such a use it will. ' '

Likewise it is said in another leading case that in the case of a
grant of land on a stream^ ''the grantee obtains a right of access
to the river, and it is by virtue of that right of access that he ob-
tains his water rights.^ ^^ And in Lyon v. Fishmongers' Com-
pany,®^ Lord Selborne said the water **can only be appropriated by
severance, and which may be lawfully so appropriated by every one
having a right of access to il"®^ In a recent^ California case.
Mr. Justice Shaw uses an expression, to the same eflfect: **This
right exists because the stream runs by the land, and thus gives
the natural advantage resulting from the relative situation,^ ^^
This is merely the same as the civil law.®*» Further authorities to
this effect appear in the next sections.

8« 3 Barn. & Adol. 304, 5 Barn. & 90 Stockport W. W. Co. v. Potter,

Adol. 1. '3 Hurl. & C. 300.

87 3 Ex. 748. 01 L. B. l*App. Cas. 673.

88 Citing 3 Kent 's CommentarieB, 02 Quoted at length, infra, sec. 281.
439, 445. »3 Duckworth v. Watsonville etc.

89 Citing 5 Barn. & Adol. 24, Mason Co., 50 Cal. 520, ^9 Pac. 338.
V. Hill. 93a Supra, sec. 269.

430 THE COMMON LAW OF RIPARIAN RIGHTS. § 279

C. THE RIPARIAN RIGHT DOES NOT REST UPON THE

MAXIM, *'CUJUS EST SOLUM."

§ 279. The Onjus est Solum Doctrine. — Resting on high au-
thority, as the foregoing basis of the doctrine does, and harmonizing
with the decisions historically considered, there is yet a different
basis frequently ascribed to the doctrine. This other founds the
doctrine not on the principle that flowing waters as a substance
belong to no one until actually taken by those having the right of
access, but on the contrary principle, that the riparian proprietor
has actual ownership in the stream as part of his estate under the
maxim, *'Cujus est solum ejus est v^que ad caelum." The term
**land" does not include running water under the former doctrine;
whereas, under the latter, the stream is an owned corpus as part of
the land.

A n^e of the conunon law long established that ''land" compre-
hends all that rests upon it, including the trees and stones and
waters. The classical statement of this is the following passage
from Lord Coke: "Land in legal signification comprehendeth any
ground, soil or earth whatsoever, as meadows, pastures, woods,
moors, waters,^ marshes, furses and heath," ^ discussing the mean-
ing of ''land," adding in the same note: "Also the waters that
yield fish for the food and sustenance of man are not by that
name demandable in a praecipe ; but the land whereupon the water
fioweth or standeth is demandable, as, for example, viginti aeras
terrae aqua cooperatas. And lastly the earth hath in law a great
extent upwards, not only of water, as hath been said, but of acre
and all other things even up to heaven ; for cujus est solum ejus est
usque ad caelum, as is holden in 14 Hen. 8, f o. 12 ; 22 Hen. 6, 5, 9 ;
10 Edw. 4, 14."«»

But this is all that can be found upon the subject of watera in
Lord Coke, and nothing applying it to the use of waters or at all
touching riparian rights can be found. The application of that
•principle to the rights of riparian proprietors is usually, though
erroneously, ascribed to Justice Story in Tyler v. Wilkinson, say-
ing: ^^ Prima fade every proprietor upon each bank of a river is

M Italics ours. M See Bladutone's comments on

M Coke on Littleton, lib. cap. 1, this passage in 2 Blackstone's Com-
sees. 1, 4a. mentaries, 18.

§ 279 FIRST PRINCIPLES. 431

entitled to the land, covered with water, in front of his bank, to
the middle thread of the stream, or, as it is commonly expressed,
usque ad medium filum aquae. In virtue of this ownership) he
has a right to the use of the water flowing over it in its natural
current, without diminution or obstruction. But, strictly speak-
ing, he h4is no property in the water itself, but a simple use of it
as it passes along/' ^

This statement by Story, it is pointed out by Mr. Yale,®® is but a
restatement of the then recent English case of Wright v. Howard,**
where the words used were, *' Prima facie, the proprietor of each
bank of a stream is the proprietor of half the land covered by the
stream, but there is no property in the water." This, instead of
identifying ownership of the bed and of the water, on the contrary
is put by the court for the very purpose of denying such doctrine ;
meaning that one cannot claim ownership in the substance merely
because he owns the bed; that the right is independent of title to
the bed of the stream and not concerned therewith; and a denial
that the right to the water rested on ownership of the bed. In
Mason v. Hill, holding the water not to be property at all, this case
is referred to as **a luminous judgment." In Webb v. Portland
Cement Co.**» Justice Story himself says that his remaSrks in Tyler
V. Wilkinson were taken from Wright v. Howard, and says "the
right of a riparian proprietor arises by mere operation of law, as
an incident to his ownership of the bank.'' From this history of
Story's words, as well as the intrinsic evidence of his passage itself,
it has clearly been misinterpreted when taken as the foundation
of the doctrine that the riparian right arises from ownership of
the land over which the water flows, by an application of the ^'cujus
est solum^' doctrine. Story's words were quoted on argument in
an early English Privy Council case. The following is the com-
ment thereon in the decision: ''The argument in opposition to this
[claim as riparian proprietor] was, that in respect to water rights,
a riparian owner was only one who was also the owner of the soil
ad medium filum aquae. Their Lordships do not think it neces-
sary to express any opinion on the first step in this argument
[holding that title in the case did extend to the middle of the stream

97 Tyler y. Wilkinson, 4 Mason, 99 i Sim ft St. 203.

397, Fed. Cks. No. 14,312. Italics w% 3 Sum. 189, ;Fed. Cas. No. 17,-

onrs. 322.

M In his work on Mining Claims
and Water Bights, p. 217.

432

THE COMMON LAW OF RIPARIAN RIGHTS.

§ 280

on the facts]. They desire only that it may not be taken for
granted that they accede to it. It is a question of some nicety, and
it so •constantly happens that the owner of the bank is also the
owner of the land ad medium fUum, that it is dangerous to attribute
too much importance to the language either of judicial decisions
or text-books, which seem to define the right where the foundation
of it has not been specifically in question." ^^

The application of the cujus est solum doctrine to running waters
and natural streams is frequently made in .cases to-day; for ex-
ample, ''Such water [flowing water] in its natural state, so far as
respects private ownership thereof, is not personal but real prop-
erty,^^^ being as much a part of the land itself as the soil and rocks.
In this aspect it is viewed by the common law, which holds that he
who owns the soil owns all above it and all beneath it." ^^

§ 280. Same. — This idea that the right arises from ownership
of the water as a part of the land beneath the water is ingrafted
upon the principle that the right to flowing water is only usu-
fructuary, a principle resulting only from the view taken, not from
the common-law maxim, but from the civil law (as first set forth),
that running waters are not property at all while flowing
naturally — a civil-law principle so pervading all the modem au-
thorities that it was, at the same time, regarded as one to be

100 Lord y. OommissionerB of Syd-
ney, 12 Moore P. C. 473. In Angell
on Watercourses, 7th ed,, section 5
(italics ours), it is said: ''The right
of private property in a watercourse
is derived as a corporeal right or
hereditament, from, or is embraced
by, the ownership of the soil over

which it naturaUy passes A

stream of water is therefore as much
the property of the owner of the soil
over which it passes as the stones
scattered over it." And in a note
it is said: "That a river, of common,
right, belongs to the proprietors of
the land between which it runs, to
each that part nearest his land. [Ex-
pressly denied by Justice Story in
Webb y. Portland Cement Co., supra.]
This has been frequently, if not uni-
formly, adopted as the established rule.
It is derived mainly from the rule that
the riparian proprietor is owner of
*he soil under the water, and by the

general law of property becomes en-
titled as of right to aU accessions."
(Id. 8.) The corpus of the water is
here regarded as property, the par-
ticles being regarded as accessions, in
conflict with the usufructuary prin-
ciple, which denies that the naturally
flowing particles are property in any
sense of the word.

101 The error is manifest, assuming
that it must be real or personal, when
the law says it is neither, and not
property in any sense of the word.
On appeal to the supreme court of
the United States in affirming the de-
cision on other grounds, Mr. Justice
Holmes spoke cSsparagingly of the
reasoninff of the State court. (Ap-
peal decided April 6, 1908. Not yet
reported.)

102 McCarter y. Hudson etc. Co., 70
N. J. Eq. 695, 65 AtL 489. See, also,
Stanislaus W. Co. v. Baehman (CaL
Sup., Jan. 23, 1908), 93 Pae. 858.

§ 2S1 FIRST PRINCIPLES. 433

accepted without examination, as a matter of course. A com-
promise between these incompatible statements that the substance is
property and not property at one and the same time, is attempted
by, some writers, but has never been widely accepted. For ex-
ample, Vinnius, a civil-law writer: **And he (Vinnius) proceeds
to distinguish between a river and its water — ^the former being, as
it were, a perpetual body, and under the dominion of those in whose
territories it is contained; the latter being continually changing,
and incapable, while it is there, of becoming the subject of property,
like the air and sea." ^^ In one old case ^^ this idea of the water-
course as an entity distinguished from its waters, seems to appear
in the expressions used: **The watercourse is a thing natural'' (as
distinguished from a right of way, which rests on the agreement of
men) and **hath its being from creation." One writer says:^^
*'The stream, viewed in this light, apart from the water which con-
stitutes it,^^ is simultaneously a feature of every man's land*
through which it passes." But the river as distinguished from its
waters is but a form or mental picture, and not, taking away its
waters, a substance at all; hence it affords nothing on which to
apply the "cuju^ est solum" doctrine, nor have the courts attempted
to rest the cujus est sohim doctrine as applied to flowing streams,
upon this metaphysical compromise. They rest it on the asser-
tion that the water itself is property as a part of the soil over
which it flows, like the trees and stones.

§ 281. Same. — This principle now under consideration, that
the riparian right is deduced from the maxim ** cujus est solum/'
is contrary to the history of the subject, and is, upon the leading
authority following, not the law. And on principle, it seems that
it could not be the law, for in one breath it asserts ownership
in the water as part of the land, and in the next denies that
naturally flowing water can be owned, or that the riparian pro-
prietor has more than .a merely usufructuary right. The cujus
est solum statement rests on ownership of a substance, tangible,
ownership of matter, a corpus lying upon the land; the usufruct
statement denies ownership of the water as a substance; the two

108 Lord Denman, in Mason v. Hill, t05 Phear's Rights of Waters, p.

5 Barn, ft Adol. 1. 22.

104 Shury v. Pigott, Poph. 169. 106 Italics ours.
Wftter Right! — 28

434

THE COMMON LAW OF RIPARIAN RIGHTS.

§ 281

are contradictory. It is * 'founded on a mistake between the prop-
erty in the water itself and the right to have its continual flow." *^

That the cujus est solum doctrine is not the foundation of the
riparian right is recognized by the recently reopened discussion
over percolating water, which has hitherto rested on that cujus est
solum maxim. The wide difference in the law of watercourses
on the one hand, and percolating waters on the other, is that which
results from applying the cuju^ est solum doctrine to percolating
water and not to running streams. The application of the cuju^
est solum doctrine even to percolating water is now being cut
down.'^ At all events, the application of the cujus est solum
doctrine to percolating water in Acton v. Blundell *** is not only
to-day recognized as a departure from the rule regarding water-
courses, but that departure was avowedly and consciously made;
and that it was a departure has never been denied.*** ** There
is onlv one case in law in which water in its natural state is the
subject of ownership, and that is the case of percolating water. A
man is regarded as owning the percolating water while it is in
his land. But other water in its natural state is subject only to
the use of the man through whose land it flows. He has a right
to its use, but is not regarded as having the title. "**^»

Moreover, the passage in Lord Coke mentions air as part of the
land as much as water ; yet no man to-day would deduce the right
to the wind for windmills from ownership of the air as part of the
land over which the air lies."* Also, with regard to the same pas-
sage, it is common knowledge to-day that a riparian proprietor
does not sue to recover so much land covered with water that is
running (in contrast to standing water). Justice Story said the
riparian right ''is not a distinct right to the water as terra aqua
cooperta.'' ***»

That on high authority the view under consideration is erroneous,
appears from the decision of the House of Lords in Lyon v. Fish-
mongers' Company.**^ The case is a direct decision upon the

lOT Lord Weiiflley<Jale ■ (Baron
Parke), in Chasemore v. Richards,
7 H. L. Cafl. 349.

108 Katz V. Walkinshaw, 141 Cal.
116, 99 Am. St. Rep. 35, 70 Pac. 663,
74 Pac. 766, 64 L. R. A. 236.

iw 12 Mees. ft W. 324.

110 See quotation infra, sec. 359.

iiOa Goodwin on Real Property, p. 2.

111 ''So though on other accounts
no one will pretend to fix a property
in the wind, yet we may appoint a
service or duty of pot intercepting
the wind to the prejudice of our
mills." Puflfendorf, lib. IV, c V,
sec. II.

iiu Slack V. Waleott, 3 Mason, 508.

112 L. R. 1 App. Cm, 673.

§ 281 FIRST PRINCIPLES. 435

question. Whether the riparian right of use is based on owner-
ship of the soil upon which the water rests or over which it flows
was the very point at issue. The river in suit being a navigable
one, title to the bed was in 'the crown, and if the riparian right
of use depended on the cujus est solum doctrine, the riparian pro-
prietor, who owned none of the bed, would have no riparian right
of use. The following passages are taken from the opinions of the
lords in that case.^^'^

Lord Cairns, Chancellor: **The Lord Justice suggests that the
right of a riparian owner in a non-navigable river arises from hia
being the owner of the land to the center of the stream, whereas
in a navigable river the soil is in the Crown. As to this, it may
be observed that the soil of a navigable river may, as Lord Hale
observes, be private property. But putting this aside, I cannot
admit that the right of a riparian owner to the use of the stream
depends on the ownership of the soil of the stream." ....

Lord Selboume: **With respect to the ownership of the bed of
the river, this cannot be the natural foundation of riparian rights
properly so-called, because the word 'riparian' is relative to the

bank, and not the bed, of the stream The title to the soil

constituting the bed of a river does not carry with it any exclusive
right of property in the running water of the stream, which can
only be appropriated by severance, and which may be lawfully
so appropriated by every one having a right of access to it. It is,
of course, necessary to the existence of a riparian right that the
land should be in contact with the flow of the stream ; but lateral
contact is as good, jure naturae, as vertical ; and not only the word
'riparian' but the best authorities, such as Miner v. Gilmour,"^
and the passage which one of your Lordships has read from Lord
Wensleydale's judgment in Chasemore v. Richards,^^^ state the doc-
trine in terms which point to lateral contact rather than vertical."
. . . . A. decree to the contrary held reversed and defendant was
enjoined from maintaining an embankment entirely diverting the
river from the back of plaintiff's building, where plaintiff moored
barges for handling goods. In another case (in the Privy Council)
holding that there is no distinction between riparian rights on
navigable and non-navigable rivers,"^ referring 'to the distinction
**that in the case of a non-navigable river the riparian owner is

113 Italics ours. "O North Shore Rv. v. Pion, L. R.

114 12 Moore P. C. 131. a4 App. Cas. 612, at 621.

115 7 H. ^. Cas. 349.

436

THE COMMON LAW OF RIPARIAN RIGHTS.

S 281

proprietor of the bed of the river od medium fUum oqtLae, which,
in the case of a navigable river such as the St. Charles, belongs
to the Crown," it was said: **The same .distinction was contended
for in Lyon v. Fishmongers* Company, but the House of Lords,
on grounds with which their I>ordships concur, thought it imma-
terial. Lord Cairns rejected the proposition that the right of a
riparian owner to the use of the stream depends on the ownership
of the soil of the stream. ' '

The Lyon case is approved in Lux v. Haggin."^

In a recent case in the . House of Lords, a claim was made to '
ownership of all the water of a river as a substance, and it was
said: ''This proposition is, of course, opposed to elementary ideas
about the water of a river, for the water would not he the property
even of the exclusive owner of the solum and of both banks at the
place in question.'^ "®

That the riparian right does not depend on ownership of the
bed on the cujus est solum principle was held in Texas ^^® and in
Calif ornia,^^ both 'holding that riparian rights exist on navigable
streams where title to the bed is in the State.

And finally Lux v. Haggin expressly holds (relying on the Lyon
case) that ownership of bed alone gives no riparian right.*^^

To conclude, the ''cujus est solum" doctrine has no application
to natural streams of running water. The word ''land" includes

in 69 Cal. 255, at 413, 10 Pao.
674.

''The ownership of land under
water is not the foundation of ripar-
ian rights, properly so called, because
the word 'riparian' is relative to the
bank and not to the bed of the
water.'' 24 Am. & Eng. Ency of
Law, 981. "A watercourse is quite
a distinct thing from the land."
Brown v. Best, 1 Wils. C. P. 174
(anno. 1747).

118 Lord Robertson in White v.
White, [1906] App. Gas. 83, House
of Lords.

119 Bingham Bros. v. Port Arthur
etc. Co. (Tex. Civ. App.), 91 S. W.
848, being affirmed^ so far as this
point is concerned, in 97 8. W. 686
(Tex. Sup.), though reversed on other
grounds. See cases cited regarding
riparian right on navigable streams,
siH!. 290, infra.

120 Heilbron v. Fowler etc. Co., 75
Cal. 426, 7 Am. St. Bep. 183, 17 Pac.
555.

121 Lux V. Haggin, 69 Cal. 255, at
413, 10 Pac. 674, saying: "The plain-
tiffs, being owners only of swamp
lands (even conceding the water in
the swamp might constitute a stream),
ware owners only of the bed of the
stream, and were not riparian pro-
prietors. ' '

If the bed lies in one county and
the riparian land in another, the
water right is not taxable as part
of the bed in the former, but must
be taxed V only in the latter county.
See In re Hall, 116 App. Div. 729,
102 N. Y. Snpp. 5. See cases cited
in 8 Harvard Law Review, 141.

Action to quiet title must be
brought in county where riparian land
lies, not where bed of stream lies.
Miller v. Madera etc. Co., Cal. Sup.,
Oct. 2, 1907.

§ 282 FIRST PRINCIPLES. 437

standing or percolating water, but does not include naturally rM?i-
ning water, because <iqua profluens is governed by a civil-law rule.
The riparian right of use is merely one of the incidents attached to
the riparian land, because it affords access to the stream.

§ 282. Results. — The application of the '^cujus est solum*'
doctrine to running waters gives rise to most of the matter so-
harshly commented upon to-day by opponents of the common law
of riparian rights in the West. We state here, citing the authori-
ties later, some of the most important results of this view :

The riparian right would not exist without ownership of the
bed of the stream. It would not exist in navigable streams, where
title to the bed is in the State. A loss of title to the bed (by grant
for example), though retaining land on the banks, would lose the
riparian right. Title to the bed alone would confer the right.
None of these propositions is law.

Any taking from the stream is prima ftuiie wrongful as a de-
struction and annihilation pro tanto of the estates of other pro-
prietors, whereas on the former view any taking by a riparian pro-
prietor is prima facie rightful until shown to unreasonably damage
other proprietors; and solely an injury (if ^t all) to his right of
use, present or future. In the discussion in a Nebraska case ^^ it
was seen that the decisions were not in accord with the statement
that the riparian proprietor had a property right in the stream as
a body as nature placed it upon, and made it a part of his estate,
saying: **The nature and extent of a riparian proprietor's pe-
cuniary interest or property in a stream cannot be measured by
such a rule, nor can the rule now be said to be full and accurate
statement of the law."

122 Crawford v. Hathaway, 67 I^eb. 326, 108 Am. St. Bep. 647, 93 N. W.
781, 60 L. B. A. 889.

438 THE COMMON LAW OF RIPARIAN RIGHTS. fi 283

CHAPTER III.

NATURE OP RIPARIAN RIGHT. !

§ 283. Natural right.

§ 284. Part and parcel af riparian land.

§ 285. Usufructuary.

§ 286. As subject of grant — ^Between the parties thereto.

§ 287. Same — As afifecting other proprietors.

§ 283. Natural Bight. — ^The riparian right has long been called
a * * natural right. ' '

One explanation frequently given to this term indicates the
soundness of the doctrine that the right arises out of the access
which the riparian land naturally, by the facts of nature, gives.
Thus: ''It has been well said that the rights of a riparian pro-
prietor, so far as they relate to any natural stream, exist jure
naturae,^ because his land has by nature the advantage of being
wfished by the stream; and, as the facts of nature constitute the
foundation of the right, the law should recognize and follow
the course of nature in every part of the same stream." ^ And an-
other case says: '-'The right exists because the stream runs by the
land, thus gives the natural advantages resulting from the relative
situation.*^ ^ And in Chasemore v. Richards,* Lord Wensleydale
(Baron Parke) says the right ex jure naturae belongs to the pro-
prietor of the adjoining lands as a natural advantage belonging to
the land upon the same principle that he is entitled to support from
his neighbor's soil for his own in its natural state, thereby explain-
ing ''natural right" on the ground of being contiguous to or ad-
joining the stream in its natural situation. Professor Pomeroy
said: "The laws of nature certainly give a natural right and ad-
vantage, from their superiority of position, to those who own land
lying on the banks of natural streams. It is an undeniable fact
that such proprietors have a natural right as compared with those
who own land at a distance from streams. ' ' **

1 Baker, J., in Indianapolis Water a 7 H. L. Gas. 349.

Co. V. American etc. Co., 55 Fed. 970. 3a Pomeroy on Riparian Rights, see.

2 Shaw, J., in Duckworth v. Wat- 152.
sonville etc. Co., 150 Cal. 520, 89 Pac.

338.

I 283

NATUEE OF BIPABIAN RIGHT.

439

But the designation of the riparian right as a natural right is
otherwise and variously put.

In one of the oldest cases upon the subject it is put thus: ''The
same [the stream] doth begin ex jure naturae^ having taken this
course naturally, and cannot be diverted." *

In other cases it is spoken of as a natural righttbecause the water
is the ''Gift of Providence."^

The term "natural right" is sometimes used as indicating that
a stream exists by natural origin, in contradistinction to an ease-
ment and as a statement that the right does not arise by prescrip-
tion. An old case distinguishes a watercourse from an easement
by saying that "a watercourse is a thing natural." ^ Another says
"the right to the natural flow of water is not an easement, but a
natural right."'' Natural rights are said by another authority to
be such as are given by law, because without them there would be
no security in the enjoyment of the land by its owner; they are
beneflts provided in the course of nature for the common good of
all, which shall not be wrested from one by the act of another.''*

The meaning of "natural right," as applied to waters, was dis-
cussed in one case,^ concluding that it refers to natural justice,
saying: "I am not, therefore, introducing any novel principle if
I regard jus naturae on which the right to running water rests,
as meaning that which is aequum et bonum between the upper and
lower proprietors."* Referring to the following: "Unde dicitur

4 Shary v. Piggott, 3 Bulst. 339.
Thifl case may perhaps have origin-
ated the maxim '*Aqua currit et
debet eurrere, ut cwrrere solebat."
As reported in Poph. 169, 170, de-
fendant dammed up and stopped by
a stone wall a stream that flowed to
plaintiff's close. Plaintiff declared
that the water ** eurrere sOlebat et
constievit** to his close, and the case
turned on the suiBciency of this plead-
ing, defendant having answered that
the land through which the entire
stream flowed had at one time been
under one ownership so that, he
claimed, the right to have the water
flow had been ' ' extinguished by unity
of possession" as would a right of
way. The expression ** eurrere sole-
bat,*' etc., was insisted on as a good
pleading of immemorial use, in anal-
ogy to a " custom/' saying that
plaintiff declared "eurrere soUbat et

conguevit, and eansuevit is a good
word for a custom."

8. Embrey v. Owen, 6 Ex. 352; Story
in Tyler, r. Wilkinson, 4 Mason, 397,
Fed. Gas. No. 14,312; Shaw, G. J.,
in Elliott V. Fitchburg By., 10 Gush.
(Hiass.) 193, 57 Am. Dec. 85.

fl Shury v. Piggott, Poph. 168;

7 Earl, J., in Stokoe v. Singer, 8
El. & Bl. 3X.

7a Gray v. Williams, 98 Cal. 161.
See Backhouse v. Bonomi, 9 H. L.
Gas. 513; Dalton y. Angus, L. B. 6
App. 740.

8 Bradford Gorporation v. Perraud,
[1902] 2 Ch. 655.

0 Blackstone says: ''This law of
nature, .being coeval with mankind,
and dictated by God himself, is, of
course, -superior in obligation to any
other." 1 Blackstone 's Gommen-
taries, 41. ''I may immediately ex-
plain in this place the nature of cer-

440

THE COMMON LAW OF RIPARIAN RIGHTS.

9 284

ius naturale est quod natura, id est, ipse deus, docuit omnia ani-
maUa."io

These each involve a different idea, and all rest on high authority.
The term ^'natural right" is hence equivocal, and not much benefit
can result from using it.

At all events, the view expressed in the Bradford case that the
right arises because of some ''natural law" or considerations of
"natural justice," is not in favor to-day. Says the court in Lux
V. Haggin: ^^ "We have been warned lest in approaching the sub-
ject we shall assume that, in the very nature of things, running
waters are inseparably connected with the riparian lands. It may
be conceded th^t if riparian owners have any right in the wateqs
(or in the lands themselves), it is such as is created or recognized

by the law of the land The whole matter depends upon the

law of the country, written or unwritten."

Perhaps the true origin of the term is the same as gave rise to the
distinction between natural and artificial ' uses discussed below.
The common law considered that there were natural, ordinary or
elemental uses of property that could be made regardless of dam-
age to a neighbor, which in such case was considered damnum absque
injuria. Such was the taking of the whole stream, if necessar3\ for
the support of life on the riparian land— a natural or elemental
use of propefty, the right to make this natural use being termet
a natural right.^^

§ 284. Part and Parcel of Biparian Land. — ^Unlike an appro-
priation, riparian rights need no act of the owner to acquire
them; they attach to the land bordering on the stream of their

tain rights, which have been con-
founded by mjsterioufl jargon;
namely, those which are called nat-
ural or inborn, and bj Blackstone,
absolute rights." Austin's Jurispru-
dence, sec. 1013.

10 Bracton, as quoted in Vol. 8,
Seldon Socy, p. 33. This expression
is like **8ie utere tuo ut alienum non
laedaa," which is sometimes thought
the open sesame of this and all other
branches of the law. It means little
because it includes everything, like
its proper translation, "Thou shalt
do no wrong." For an attempt to
develop the common law of waters di-
rectly from this maxim, see Phear

on Bights of Water. He says the
"alienum" of the maxim becomes
"very comprehensive" when he tries
to fit the decisions to it (page 22).
He defines the term "natural right"
as follows: "The rights which spring
from the exclusive power, given by
the conunon law to every possessor
of property, of doing what he likes
with his own, when modified by the
rule which has just been discussed
[sio utere tuo, etc] may' be conven-
iently designated Natuntl Bights"
(page 7).

11 69 Cal. 265, 10 Pac. 674.

12 See Natural Uses, sec. 295, in-
fra.

§ 284 NATURE OP RIPARIAN RIGHT. 441

own accord. The riparian right is a privilege that is part and
parcel of the riparian land that gives the access to the water;
the right of access and all that follows from it being an insepara-
ble resolt from ownership of the land like the right of support for
the land. The riparian right is inherent in the riparian ladd and
part and pared of it; an inherent result of the relative position
of the land to the stream.

The following quotations show how this is put in the authori-
ties: "It is held by practically all the better authorities that the
right of the riparian owner to the natural flow of the stream by or
across his land in its accustomed channel is an incident to his
estate and passes by a grant of the land, unless specifically re-
served. It is not an easement in or an appurtenance to the land/'
etc.^^ Says the court in Lux v. Haggin,^* *|By the common law,
the right of the riparian proprietor to the flow of the stream is in-
separably annexed to the soil, and passes with it, not as an easement
or appurtenance, but as part and parcel of it. Use does not create
the right, and disuse cannot destroy or suspend it." A.nother au-
thority says: "The right of enjoying this flow without disturbance
or interruption by any other proprietor is one jure naturae, and is
an incident of property in the land, not an appurtenance to it;
like the right he has to enjoy the soil itself, in its natural state,
unaffected by the tortious acts of a neighboring landowner. It is
an inseparable incident to the ownership of land, made by an
inflexible rule of law an absolute and fixed right, and can only
be lost by grant or ... . adverse possession. " ^^ In another case
it is said: "His rights are not easements or appurtenances to his
holdings. They are not the rights acquired by appropriation or
by prescriptive use. They are attached to the soil and pass with
it. ' ' ^^ And another : * * The right or title to the stream as it passed
was a part and parcel of his land, a part of the realty. ' ' ^''

The right was compared by Lord Wensleydale (Baron Parke) in
Chasemore v. Richards to the right of the land to the support
of adjoining land, a natural attribute of the land in its natural

18 Benton v. Johncox, 17 Wash. 41 Pac. 18, 30 L. R. A. 390, and
277, 61 Am. St. Rep. 912, 49 Pac. Anderson v. Baseman, 140 Fed. 22.
496, 39 L. R. A. 107. ^^ Mr. Justice Shaw, in Duckworth

14 69 Cal. 255, 10 Pac. 674. T- ^**»^°^« f ^ Co., 150 Cal. 520,
„ __ . - _ X ^xi. J ^^ P«^- 338. Also in Southern Gall-
op oi"° ^" Easements, 4th ed., f^^^ q^ ^ Wilshire, 144 Cal. 68,
pp. 316, 317. 77 Pac. 767 ; Huffner v. Sawday, Cal.
i« Hargrave v. Cook, 108 Cal. 72, Sup., Feb. 18, 1908. •

THE COMMON LAW OP BIPABIAN RIGHTS.

i tu

situation, and this comparison to the right of support has passed
into the authorities generally. One authority compares the right
to a right of common or pasturage appurtenant to the land/^ but
as the above authorities show, the law does not consider it an
easement or appurtenance.^^ The right is part and parcel of the
land, acquired by virtue of ownership of the land, without any
special formalities of any kind.^ It passes ipso facto with the land
on a sale, as part and parcel thereof. ^^ The riparian right may,
on a partition of riparian land, be partitioned with the land;^
the subdivided rights of the partitioned parcels still retain their
character of a riparian right.^ A deed of land with general war-
ranty includes, without more, a warranty of riparian rights, but
does not necessarily include a warranty of a right by appropria-
tion.^ It is subject to taxation as realty.^

The right is held to be incorporeal^— a privilege of use and not an
ownership of a tangible substance — so that, being incorporeal, con-
tracts concerning it cannot create the relation of landlord and
tenant, since tenancy can exist only in things corporeal ; ^ nor will
(BJectment lie to recover a watercourse diverted from a riparian
owner ; ^ nor is it corporeal property taxable as part of the stream
bed; it is taxable only as an incorporeal incident to the riparian

iR Omerod y. Todmorden Co., 11
Q. B. 172, Bowen, L. J.

10 See, also, Lux v. Haggin, 69 Cal.
255, at 293, 10 Pac. 674; Vernon v.
Los Angeles, 106 Cal. 237, 39 Pac.
762 ; Pomeroj on Biparian Bights, sec.
9. The riparian right \b spoken of
as an ''appurtenance" in Bianda v.
Watsonyille etc. Co. (Cal. Sup., Dec.
9, 1907), 93 Pac. 79.

20 Lux V. Haggin, 69 Cal. 255, at
390, 10 Pac. 674; Bathgate v. Irvine,
126 Cal. 135, 77 Am. St. Bep. 158,
58 Pac. 442.

21 Lux V. Haggin, 69 Cal. 255, 10
Pac. 674; Hargrave v. Cook, IDS Cal.
72, 41 Pac. 18, 30 L. B. A. 390; Ben-
ton V. Johncox, 17 Wash. 277, 61 Am.
St. Bep. 912, 49 Fac. 496, 39 L. B.
A. 107; Bianda v. Watsonville etc.

Co. (Cal. Sup., Dec. 9, 1907), 93 Pac.
79. That the riparian right passes
ipso facto on a sale of the land,
Shamleffer v. Council etc. Co., 18 Kan.
24; as part and parcel of it, Cline
V. Stock, 71 Neb. 70, 98 N. W. 454,
102 N. W. 265.

22 Cf,, sec. 71, supra,

23 Verdugo Canyon W. Co. v. Ver-
dugo (Cal. Sup., Jan. 23, 1908). 93
Pac. 1021. See, also, Bose v. Mes-
mer, 142 Cal. 322.

24 Dalton V. Bowker, 8 Nev. 190.

25 Penobscot Co. v. Inhabitants of
Bradley, 99 Me. 263, 59 Atl. 83.

26 Swift V. Goodrich, 70 Cal. 103,
11 Pac. 561.

27 Ihid,f and Shury v. Piggott,
Latch, 153, Noy. 84.

9 285

NATURE OF BIPABIAN BIGHT.

443

land.^ Justice Story ^s* gaid that the riparian right -'is not a
distinct right to the water, as terra aqua cooperta/' and is -not
a corporeal hereditament, but is an incorporeal hereditament an-
nexed to the freehold.

§ 28fi. The Bight is Usufmctnary. — That the riparian right,
like the right by appropriation, is solely usufructuary, has already
been set forth at length,^ and need not be again considered further
than to say that the riparian proprietor ''has no property in the
water itself, but a simple use of it as it passes along. "^ The
right is to a use and flow merely, a right to use the water as natur-
ally following ownership of the bordering lands, but involving no
ownership in the corpus of the water; just as riparian owners have
a right to fish in the stream, but do not own the fish swimming
there.'* As stated in Hargrave v. Cook: ^^ **The right of a ripar-
ian proprietor in or to the waters of a stream flowing through or
along his land is not the right of ownership in or to those waters,
but is a usufructuary right — a right, amongst others, to make a rea-
sonable use of a reasonable quantity for irrigation, returning the
surplus to the natural channel, that it may flow on in the accus-
tomed mode to the lands below." In another case: ''The rights of
the riparian owner .... do not include a proprietorship in the
corpus of the water. His right to the waters is limited to its
use," etc.^
• The riparian owner usually owns the bed to the middle of the
stream, but the right is independent of that f act,^ and exists also
in navigable streams^ where the title to the bed of the stream is in

28 See In re Hall, 102 N. Y. Supp.
r>, 116 App. Div. 729.

' ' Incorporales (autem) sunt quae
langi non possunt, qualia sunt ea quae
iure consistunt, sicut hereditas, usu-
fructus oblgationes quoquo mode con-
tractae,'' etc. ("ThingB incorporeal
are intangible; rights, for instance,
such as inheritance, usufruct, obliga-
tion, however contracted.'') Insti-
tutes of Gains, sec. 12; identical in
Institutes of Justinian, V. That the
riparian right of use is incorporeal,
see, also, Washburn on Easements,
307.

28a Sbick V. Walcott, 3 Mason, 508.

29 Supra, Part II, c. II.

30 Justice Story, in Tyler v. Wil-
kinson, 4 Mason, 397, Fed Gas. No.
14,312.

31 People V. Truckee etc. Co., 116
Cal. 397, 58 Am. St. Bep. 183, 48
Pac. 374, 39 L. B. A. 581.

82 108 Cal. 72, 41 Pac. 18, 13 L.
B. A. 390.

83 Oonld V. Eaton, 117 Cal. 542, 49
Pac. 577, 38 L. B. A. .181. See, also.
Pope v. Kinman, 54 Cal. 3.

84 AntCf sec. 279 et seq.

444

THE COMMON LAW OF RIPARIAN RIGHTS.

§ 286

the state ; ^ and, on the other hand, does not exist in favor of one
owning only the bed, and no bank-lands.^

§ 286. As Subject of Orant or Contract — Between the Parties
Thereto. — A grant or contract of or concerning water between
riparian owners is binding upon them. The grant or contract is
binding upon the parties to it.*'

It is sometimes said that a grant between riparian owners is not
a transfer of a right, but an extinguishment thereof, as though it
were an easement.'''* Section 801, Civil Code of California, declares
the right to have water flow is a servitude on land, and section 811
declares the effect of a grant in derogation of this servitude is to
extinguish it. The question arises chiefly in connection with the
statute of frauds, holding that a parol license does not grant any-
thing within the statute, but rather estops the licensor from assert-
ing any right. But the prevailing view is that the riparian right
is not an easement or servitude, and the parol license cases do not,
on the better authority, proceed upon such a distinction at law, but
rely upon equitable principles of a different kind where acted upon
and expense incurred; being irrevocable in equity. However that
may be, the grant between the riparian owners is binding inter se.

Likewise, between the parties, a grant between a riparian and a
non-riparian owner is binding between thejn.^ A riparian owner
may grant the land but reserve the use of the water, which will be
binding inter se.^ Or he may grant all his riparian right to an-
other, reserving only use for domestic purposes. Where a riparian
proprietor conveyed his rights to another, reserving only domestic
use, the grant was held binding between the parties and privies.

35 Infra, sec. 290.

96 Lux V. Haggin, 69 Cal. 255, at
413, 10 Pac. 674.

87 Painter v. Pasadena etc. Co., 91
Cal. 74, 27 Pac. 539; Outhouse v.
Berry, 42 Or. 593, 72 Pac. 584; Yocco
V. Conroy, 104 Cal. 468, 38 Pac. 107 ;
City of Salem v. Salem etc. Co., 12
Or. 374, 7 Pac. 497; Gould v. Staf-
ford, 91 Cal. 146, 27 Pac. 543; Nich-
ols V. New England etc. Co., 100 Mich.
230, 59 N. V7. 155; Churchill v. Bau-
mann, 104 Cal. 369, 36 Pac. 93, 38

Pac. 43; Bose y. Mesmer, 142 Oal.
322, 75 Pac. 905; Fuller v. Azuza
Co., 138 Cal. 204, 71 Puc. 98.

87a See Lux v. Haggin, 69 CaL 255,
293.

88 Yocco V. Conroy, 104 'Cal. 468,
88 Pac. 107; Gould v. Stafford, 91
Cal. 146, 27 Pac. 543; Alhambra etc.
Co. V. Mayberry, 88 Cal. 74, 25 Pac.
1101.

39 Walker v. LiUingston, 137 Cal.
401, 70 Pac. 282.

§ 287 NATURE OF RIPABIAN BIGHT. 445

and the purchase by the grantor or his successors of other rights
below stream thereafter is not material.^

Where, on the sale of his rights, the riparian owner reserves a
use for a limited purpose, such as for a hydraulic ram, the reserva-
tion is lost by non-user for that purpose.^^

An exclusive use may be given to one party by decree on a parti-
tion of a riparian tract, which will bind the parties to the partition.*^

§ 287. Same — As Affecting Non-contracting Proprietors. — ^A

riparian proprietor has, in his riparian right, something of value
as a part of his land» which is entitled to protection against other
riparian proprietors. Can he sever this species of property from
his land and give his non-riparian grantee the same right of pro-
tection against other riparian owners in the granted use as he him-
self had t

The rule stated as a general principle is, that he cannot, follow-
ing the English case of Stockport W. W. v. Potter,^ where a non-
riparian grantee using the water for household consumption and
town water supply was not allowed to enjoin an upper riparian
owner who polluted the water with chemicals. The rule against
non-riparian use has been likened in this respect to the*use of a
right of pasture appurtenant to land which cannot be transferred
for a purpose not referable to the land to which it was appurtenant.
**The right of a riparian owner to the flow of water may, in this
respect, be compared to a right of common for cattle levant and
couchant upon land ; this right cannot be aliened from the land. ' ' ^
But this explanation is contrary to the accepted principle that the
riparian right is not an appurtenance in its nature.

If, however, the true view of the riparian right is that all may
use the water who have a right of access, then^ provided the pos-
sible use of others having the same right is not at all impaired, there

40 Duckworth v. WatsonviUe etc. ^ 41 Walker v. LiUrngston, 137 Cal.

Co., 150 Cal. 520, 89 Pac. 338, say^ 404^-70 P&c. 282.

ing: **By reason of its purchase of ^ Verduao Canvon W Co v Ver-

these riparian rights the company pos- augo ^C AJ^Jan. V"^^^^

sessed the right, so far as that land Pac inoi ""-'>•

and its owners were concerned, to use ' *

the whole or any part of the waters ''**^ ^^^- * C. 300.

of the lake except such as were nee- ** Bowen, L. J., in Omerod v. Tod-

essary for domestic use and for the morden Mill Co., 11 Q. B. D. 172.
watering of stock thereon.''

446 THE COMMON LAW OF RIPARIAN RIGHTS. § 287

may be an exception to the rule in clear cases \7here no damage
can possibly accrue to the complaining proprietor. A grant of a
right of access would merely place the grantee in the shoes of his
grantor riparian owner, who can excuse damage to others only on
the reasonable use of the riparian land, which, as a general rule,
precludes the non-riparian grantee, as well as his grantor, from
making any non-riparian use at all. Where, however, no possible
injury can accrue to the use of other riparian owners, now or here-
after, the non-riparian grantee is sometimes held to have an en-
forceable right against the other riparian owners."**^ A non-riparian
grantee of a riparian owner has been allowed to recover damages
from a lower proprietor who backed water upon his mill.*** The
idea that other riparian owners must be injuriously aflPected before
they can complain of the grant seems also to appear in a leading
case. **In applying these rules to the present case, we are to con-
sider that Clark, who owned the land on which the dam was built,
and the defendants to whom he conveyed all his right to the use
of the water, as holding together the whole right, and it is to be
considered in the same manner as if the defendants owned the
land. We think it was properly left to the jury to find, whether
the defendants, claiming in the right of Clark, had, by their di-
version of the water for a valuable and highly beneficial use,
caused any actual or perceptible damage, and if not, to find for
the defendants."^'' The facts were that Clark had sold to a non-
riparian defendant, a railway company, the right to dam the
stream and take water for use in locomotives on non-riparian land.
This the writer understands to be usually called **the American
Rule.''

But the English rule is to the contrary.**® And a recent Cali-
fornia case says: ** Furthermore, his riparian right is limited to

45 Jones V. Conn, 39 Or. 30, 87 St. Anthony Co, v. Minneapolis, 41
Am. St. Rep. 634, 64 Pac. 855, 65 Minn. 270.

Pac. 1068 54 L. R A 630; Gillis v. m Bristol etc. Co. v. Boyer, 67

Chase, 67 N. H. 161, 68 Am. St. Rep. j^^ 236

645, 31 Atl. 18, and see Elliott v.

Pitchburg Ry., 10 Cush. (Mass.) 191, *^ Elliott v. Fitchburg Ry., lOCush.

57 Am. Dec' 85. See Doremus v. aty (Mass.) 191, 57 Am. Dec. 85.

of Paterson (N. J.), 52 Atl. 1107; 48 McCartney v. Londonderry Ry.,

Hall V. City of Jonia, 38 Mich. 493; [1904] App. Cas. 301.

8 287

NATURE OF RIPARIAN RIGHT.

447

his riparian land. It gave no right to use any of the water of
the stream for any purpose, upon land not riparian, nor upon
any riparian land other than his own. No one can sell or con-
vey to another that which he 'does not himself own. Grimmer
could not, by a transfer of his riparian rights, sell to the plaintiflP,
as against third persons having interests in the water, the right
to use the water upon any land, riparian. or jion-riparian, except
his own, to which it originally attached. His deed operated to
prevent him from complaining of a diversion, but it did not aflPect
other parties."**

In any case, it is clear that if other riparian proprietors are or
may hereafter be actually damaged in their possible use of the
water, Htngrant to a non-riparian owner will be binding upon
silcli utliefs, thougn of tte^me amount that the grantor might,
had he chosen^ have^ Jiaed. on. Jiia- 4MffB-4and.^ '^'As against him-
sell orTns grantee he mB.y contract for the diversion of water
to non-riparian lands, but the rights of the inferior proprietor will
not be affected by such contract." *^*

The question discussed in this section is closely involved with
the question of the place of damage in the law of riparian rights,
as discussed at length in a later chapter.*^ We there concluded
that the prohibition of non-riparian use arises out of two con-
siderations: (a) that non-riparian owners have no access to the
water; and (b) that the riparian owner (who has access) can ex-
cuse damage to a neighbor only by the reasonable use of his own
(the riparian) land. Applying these principles, a' grant of access
to another removes the first ground of the prohibition. The second
ground (reasonable use of the riparian land through which the
right is derived) is material only in excuse of possible damage, and
disappears also in the extreme case where it is shown that no dam-

*» Duckworth v. Watsonville etc.
Co., 150 Cal. 520, 89 Pac. 338. The
theory of this passage is^ evidently
that a grant operated merely as an
extinguishment as above adverted to,
and passes no property.

50 Heilbron v. Fowler etc. Co., 75
Cal. 426, 7 Am. St. Rep. 383, 17 Pac.
535; Crawford v. Hathaway, 67 Neb.
325, 108 Am. St. Rep. 647, 93 N. W.
781, 60 L. R. A. 889.

51 Gould V. Eaton, 117 Cal. 542, 49
Pac. 577, 38 L. R. A. 181, citing the
Stockport case.

In the French and Mexican law a
sale of right to a nonriparian owner
is valid, provided no damage can
possibly result to the use of com-
plaining riparian owners. Droit
Civile Francais, by Aubrey ft Rau,
4th ed., vol. Ill, p. 51; HalPs Mexi-
can Law, sec. 1397.

52 Chapter VII.

448 THE COMMON LAW OF RIPARIAN RIGHTS. 9 287

age to complainant's capacity of use at any time can possibly oc-
cur.

Where all the riparian rights on a stream are dealt with together
in one contract, a right similar in result to an appropriation may
arise, since all who could complain have contracted away their
rights. A severance of riparian rightis by a sole riparian proprie-
tor hence is a Close counterpart of an appropriation. An appro-
priation is, on the other hand, under the California doctrine a grant
from the United States so far as it was, in Pioneer days, a sole
riparian proprietor.^^

r»3 Ante, sec. 33. '

9 288 WHAT PERSONS AND UPON WHAT WATEBS. 449

CHAPTER IV.

WHAT PERSONS AND UPON WHAT WATERS.

§ 288. Who are riparian proprietors.

8 289. What waters — ^Watercourses.

§ 290. Navigable streams.

} 291. Interstate streams.

S 292. Standing water — Lakes — Ponds.

§ 293. Percolating water.

■

§ 288. Who are Biparian Proprietors. — Only those who own
lands touching the stream are riparian proprietors.^ One having
title only to the bed is not a riparian proprietor.^

**When the stream ceased and the channel became dry, he, for
the time being, ceased to be a riparian owner, so far as a present
use of the water was concerned. His land did not, at those times,
border upon any stream,"' but a sub-surface flow being proved,
the fact that there is no surface flow does not make a case within
this rule; he is still a riparian owner.^

Forfeiture of title to the land occurring, he is no longer a riparian
proprietor, as where a pre-emption or mining claim is abandoned.^
Where an Indian reservation is thrown open to settlement, it be-
comes vacant public land, and the settler cannot claim succes-
sorship to the Indians as riparian proprietors.® The owner of a
mining location may be a riparian proprietor ; ^ but a mere squat-
ter on public lands cannot claim as riparian proprietor by virtue
of his naked possession.®

If a stream flows through a city, there are authorities that the
city as a whole is a riparian proprietor, but the better decisions
hold only the lot owners touching the stream as the riparian pro-

1 Hayden v. Long, 8 Or. 244. & Conkling v. Pacific Imp. Co., 87

2 Lux V. Haggin, 69 Cal. 255 at Cal. 296, 25 Pac. 399.

413, 10 Pac. 674. 6 Morris v. Bean (Mont.), 146 Fed.

3 Qutierrez v. Wege, 145 Cal. 730, 432, dictum,

79 Pac. 449; Duckworth v. Watson- ^ CrandaM v. Woods, 8 Gal. 136;

vme etc. Co., 150 Gal. 520, 89 Pac. Leigh v. Ditch Co., 8 Cal. 323.

338. See infra, c. y I, Biparian Land. 8 Kendall v. Jojce (Wash.), 93

4 Infra, Part III, c. L Pac. 1091.

Water RightB — 29

450 THE COMMON LAW OT RIPARIAN BIGHTS. §§ 289, 290

prietors.^ The iisual rule is that a city as such cannot be a riparian
owner, but only the individuals whose land abuts thereon.^®

§ 289. Upon What Waters— Watercourses.— The right at-
taches to the whole natural stream,^* including its sub-flow ^ and
its tributaries.^* Only the natural flow, it has been held, is sub-
ject to the right, and not a ** non-natural" part of the flow such
as storm waters,^^ though it has been held that all the water in the
channel, including storm water, is natural flow,^^ and the decisions
concerning storm waters conflict, as below discussed.^®

What constitutes a watercourse depends on the same principles
as those already discussed.^''

Riparian rights exist in definite underground streams. ^^

§ 290k Navigable Streams. — ^Riparian rights exist in navigable
streams,^® though the State owns the bed, and the riparian pro-
prietor owns none of the soil under the water; for the right de-
pends upon bordering on the stream and owning land on its banks,
not the bed. The leading case is Lyon v. Fishmongers' Company,^
already quoted, wherein it is further said by Lord Chelmsford:
''Upon this second question the Lords Justices said they were 'un-
able to find any authority for holding that a riparian proprietor
where the tide flows and reflows has any rights or natural easements
vested in him similar to those which have been held in numerous
cases to belong to a riparian proprietor on the banks of a natural
stream above the flow of the tide.' But with great respect, I find
no authority for the contrary proposition, and I see no sound prin-

» Cf, Los Angeles v. Los Ange- ii Lux v. Haggin, 69 Gal. 255, 10

les Water Co., 124 Cal. 368, 57 Pae. Pac. 674.

210. 12 Infra, sees. 353-365.

10 Bickett V. Morris, L. R, 1 H. is Ante, sec. 96; infra, sec. 356.

of L. (8c. App. Gas.) 47; City of ge© Chauvet v. Hill, 93 CaL 407, 28

Schnectadj v. Furman, 61 Hun, 171, Pac. 1066.

15 N. Y. Supp. 724. 14 Yi&eld v. Spring Valley etc. Co.,

The state has been said to be a 130 Cal. 552, 62 Pac. 1054. Ante,

riparian proprietor, by reason of its g^ 94

ownership of the foreshore at tide- ^\ r^\•J^ • ^ r^ «»x

water on an innavigable stream. « Calif oraia etc Co. v. Enterprise

McCarter v. Hudson etc. Co., 70 N. ^^' ^f ^^^ ^«^- ^*1-

J. £q. 695, 65 Atl. 489, an anomalous ^^ Sec. 322.

statement made only arguendo in a 17 Ante, sec. 90 et seq.

generally poor opinion. is infra, sec, 352a.

Quaere, how far a railroad is a ' T>^k^.f«^ 00
riparian proprietor where it owns the ' ^/V .io ' i^^ of Eochester, 92

fee of its roadbed crossing or paral- ■^' ^' *^3» *»^ ^^ *'*/♦«•

leling a stream. Discussed in Mc- 20 L. B. 1 App. Cas. 673, aiflirmed

Cartney v. Londonderry By., [1904] in North Shore By. v. Pion, L. B. 14

App. Cas. 301, 311. • App. Cas. 612.

§ 291

WHAT PERSONS AND UPON WHAT WATERS.

451

ciple upon which the distinction between the two descriptions of
natural streams can be supported. And it seems to me that cases
have been decided which are strongly opposed to it. Why a ripa-
rian proprietor on a tidal river should not possess all the peculiar
advantages which the position of his property with relation to the
river affords him, provided they occasion no obstruction to the nav-
igation, I am unable to comprehend. '^

The California court has said: ''We see no occasion to discuss
the question as to whether the river is navigable or not. In either
event the result would be the same. The riparian owner on a
non-tidal, navigable stream has all the rights of a riparian owner
not inconsistent with the public easement. "^^ And has also up-
held an appropriation upon a navigable stream.^ In a Texas case :
''As to all streams, whether navigable or otherwise, the right exists
to the use of the water for domestic purposes, etc." "The riparian
rights of the. owner of lands on a navigable stream do not depend
upon his ownership of the soil to the center of the stream.^ It
is therefore immaterial to the existence of the right in this. State
that the State has refused to extend grants across streams thirty
feet in width, and has required the grant to stop at the margin of
such streams." Adding that the right is subordinate to the public
easement of navigation.^^ The Texas case went to the Texas su-
preme court * where the proprietor's right was not only upheld, but
the former case was reversed for holding that his use could be de-
stroyed without compensation in the improvement of navigation.

§ 291. Xnterstate Streams. — ^Upon streams flowing from a
State. recognizing riparian rights into one denying them, the ripa-
rian right has been upheld in favor of proprietors in the former
State.2«

21 Heilbron v. Fowler etc. Co., 75
Cal. 426, 7 Am. St, Rep. 185, 17 Pac.
535.

22 Ante, sec 97.

28 Citing Scranton v. Wheeler, 179
U. 8. 141, 45 L. ed. 126, 2x Sup. Ct.
Bep. 48; Oould on Waters, p. 275.

24 Bingham Bros. v. Port Arthur
etc. Co. (Tex. Civ. App.), 91 8. W.
848. See, also, Kalama Co. v. Ka-
lama Co. (Wash.), 94 Pac. 469; Lux
V. Haggin, 69 Ckl. 255, at 391, 10

Pac. 674; Williams v. Fulmer, 151
Pa. St. 405, 31 Am. St. Bep. 767, 25
Atl. 103. In Nebraska it has been
doubted whether the riparian right
of use exists on navigable streams.
Crawford v. Hathaway, 67 Neb. 325,
108 Am. St. Bep. 647, 93 N. W. 781,
60 L. B. A. 889.

25 97 8. W. 686.

26 Anderson v. Bassman, 140 F«d.
14; Willey v. Decker, 11 Wyo. 496,
100 Am. St ^p. 939, 73 Pae. 210.
See ani€y sec. 98.

452 THE COMMON LAW OF REPARIAN RIGHTS. §§ 292, 293

§ 292. Standing Water— Lakes— Ponds.^— In the House of
Lords ^ the Chancellor ^ recently said of a dam built about a rock
in a river: **The right to maintain that artificial addition to the
rock may be assumed; but it does not follow that the addition to
the rock has in any respect altered the legal relations of the par-
ties and made what has been part of a running stream hitherto, less
a running stream, or turned it into a pond, so that the water in-
closed within. that pond should become, not publici juris, but water
with somewhat of a proprietary right."

We refer to this because it implies that water in a pond is water
with somewhat of a proprietary right, depending upon different
considerations than watercourses, for, as already discussed, the law
of watercourses is based on the fundamental consideration that the
corpus of the running water is not the subject of private owner-
ship. If, then, the corpus of water in a pond (not running, but
standing water) is propert}', the basis of the riparian right is gone^
and the analogy is rather to the law of percolating water. How-
ever this may be, where the pond or lake has an inlet or outlet
in a running stream, the lake is regarded as but a part of the
watercourse, and governed by the law of watercourses and the
riparian right of use exists thereon.^

§ 293. Percolating Water. — ^The law of riparian rights does
strictly not apply to percolating water, since there can be no ripa-
rian proprietors where there is no watercourse or lake or pond, or
other body of water having banks.^^ Rights in percolating water
are separately considered later. The word ** riparian'* has, how-
ever, been recently used with reference to lands bearing diffused
percolating water .'^

27 See, also, sec. 102, supra. ther, so far as it speaks of a pond,

28 White V. White, [1906] App. probably contemplated an artificial
Cas. 27. pond; as to which see section 153,

^ Lord Halsbury. supra.

30 Duckworth v. Watsonville etc. 31 Morrison v. Officer (Or.), 87

Co., 150 CaL 520, 89 Pac. 338. . Such, Pac. 896.

also, seems the point of view of the ^ Cohen v. La Oanada W. Co., 151

English case, supra, which case, fur- Gal. 680. *

I ;

S 294 LIMITATIONS ON USE OF WATER. 458

CHAPTER V.

LIMITATIONS ON USE OF WATER— REASONABLE USE.

S 294. Equality of ri^^arian owoers.

§ 295. Natural uses — (I'se to support life).

S 296. Artificial uses — (Business uses).

§ 297. Same.

§ 298. Reasonable use for irrigation.

§ 299. Same.

§ 300. Appprtionment.

§ 301. Manner of use.

§ 302. Return of surplus.

§ 294. Equality of Riparian Owners. — Since all riparian pro-
prietors have an equal right of access to the water, they have an
equal right of use, which no one of them may unreasonably vio-
late. In a* reasonable use of one's own land the damage to the
other is damnum absque injuria, but in excess, the damage is
wrongful. ** There is a perfect equality of right among all the
proprietors," said Justice Story.^ **The theory of the law of
riparian rights in this State is that the water of a stream belongs
by a sort of common right, to the several riparian owners along the
stream, each being entitled to sever his share for use on his riparian
land.''^ A riparian proprietor on whose land a stream rises has
no greater right than other riparian proprietors.^ Nor has one
who first used the water.'* The rights of the riparian proprietors
are correlative, as contrasted with the exclusive right obtained
by appropriation. **The property interest in the water is usu-
fructuary, and his right thereto is subject to many limitations and
restrictions, aud always depends upon its reai^onableness when con-
sidered in connection with a like right as belonging to all. other
riparian proprietors. His use must be reasonable, whatever may

1 Tyler v. Wilkinson, 4 Mason, 397 " ^m\ille W. Co., 150 Cal. 520, 89 Pae.
Fed. Cas. No. U,312. See, also, 338.

Thornton, J., in Anaheim W. Co. v. 3 Geddish v. Parrish, 1 Wash. St.

Semi-Tropic W. Co., 64 Cal. 185, 196, 587, 21 Pac. 314; Nielson v. Sponer

30 Pac. 623. (Wash.), 89 Pac. 155.

2 Shaw, J., in Duckworth v. Wat- 4 Ante, sec. 266.

454

THE COMMON LAW OF RIPARIAN BIGHTS.

S 295

be its purpose; and he may not, under any circumstances, by his
use, materially damaj^e other proprietors, either above or below
him."*^ *'The law here, as in many other cases, acts with a rea-
sonable reference to the public convenience and general good, and
is not betrayed into narrow strictness subversive of common sense,
nor into an eztravagrant looseness which would destroy private
rights.'' «

What is such unreasonable injury has become defined by re-
peated decision of particular cases, crystallizing into some rules.
The chief classification is between natural uses and artificial uses.''

§ 295. Natural Uses — (Use to Support Life). — Natural uses
are those arising out of the necessities of life on the riparian land,
such as household use, drinking, watering domestic animals. For
these purposes the riparian owner may take the whole stream if
necessary, leaving none to go down to lower riparian proprietors
or lower subsequent appropriators.*

B Crawford v. Hathaway, 67 Neb.
235, 108 Am. St. Rep. 647, 93 N. W.
781, 60 L. R. A. 889. Citing Union
Mill & Mining Co. v. Dangberg (C.
C), 81 Fed. 73; Williamson v. Lock's
Creek Canal Co., 78 N. C. 156.

6 Justice Story, in Tyler v. Wilkin-
son, 4 Mason, 397, Fed. Cas. No.
14,312.

"^ yfigginB V. Muscupiabe etc. Co.,
113 Cal. 182, 54 Am. St. Rep. 337, 45
Pac. 160, 32 L. R. A. 667; Lux v.
Haggin, 69 Cal. 255, at 408, 10 Pac.
674.

Lord Macnaghten, in McCartney
V. Londonderry Railway, [1904] App.
Cas. 301, snid: ''There are, it seems
to me, three ways in which a person
whose lands are intersected or
bounded by a running stream may
use the water to which the situation
of hia property gives him access.'*
These ways, he says, are: First,
primary uses for which he may take
the whole stream; second, other uses
connected with or incident to his
land with regard to which his use
is limited; and third, uses foreign to
his land as to which he has no right
at all.

8 Lux v. Haggin, 69 Cal. 255, at
395 and 407, 10 Pac. 674; Crandall v.

Woods, 8 Cal. 138; Bear River Co. ▼.
York Co., 8 Cal. 333; Stanford v.
Felt, 71 Cal. 249, 16 Pac. 900; Gould
V. Stafford, 77 Cal. 66, 18 Pac. 879;
Smith V. Corbit, 116 Cal. 587, 48 Pac.
725; Wiggins v. Muscupiabe etc. Co.,
1 13 Cal. 182, 54 Am. St. Rep. 337, 45
Pac. 160, 32 L. R. A. 667; Alta etc.
Co. V. Hancock, 85 Cal. 219, 20 Am.
St. Rep. 217, 24 Pac. 645; Chauvet
V. Hill, 93 Gal. 407, 28 Pac. 1066;
Union Min. Co. v. Dangberg, 81 Fed.
73; Barrett v. Metcalfe, 12 Tex. dv.
App. 247, 33 S. W. 759; Nelson v.
Sponer (Wash.), 89 Pac. 155; Ferrea
V. Knipe, 28 Cal 340, 87 Am. Dee.
128; Hale v. McLea, 53 Cal. 578;
Swift T. Goodrich, 70 Cal. 108, 11
Pac. 561; Baker v. Brown, 55 Tex.
377; Temple, J., in Katz v. Walkin-
shaw, 141 Cal. 116, 99 Am. St. Rep.
35, 70 Pac. 663, 74 Pac. 766, 64 L.
R. A. 236; Duckworth v. WatsonviUe
etc. Co., 150 Cal. 520, 89 Pac. 338;
Rhodes v. Whitehead, 27 Tex. 304,
310, 84 Am. Dec. 631; Wadsworth v.
Tillotson, 15 Conn. 366, 39 Am. Dee.
391; Pomeroy on Riparian Rights,
sees. 129, 134; 30 Am. Sc Eng. Ency. of
Law, 2d ed., (b), pp. 358, 359, note 1.

8 295

LIMITATIONS ON USE OF WATER.

455

Some quotations may be given to this effect. In Lux v. Haggin
it is said: ''So far as the question may be supposed to imply that
an upper proprietor may not 'essentially' diminish the water by
using it for domestic purposes, and for watering cattle, the weight
of authority is that he may, if necessary, consume all the water
of the stream for those purposes. Such is the California rule.
Indeed, in case of a small rivulet, the necessary consequence of using
it at all, by one or more upper owners, for these 'natural' or 'pri-
mary' purposes, must often be to exhaust the water. " ^ In another
California case: " It appears to be 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." ^® In a
Texas case: "A lower proprietor cannot complain that one above
uses the water of a stream for ordinary purposes, even though the
water is thus exhausted." ^^ The leading expression is in a well-
known English case: "By the general law applicable to running
streams, every riparian proprietor has a right to what may be called
the ordinary use of the water flowing past his land; for instance,
to the reasonable use of the water for his domestic purposes and
for his cattle, and this without regard to the effect which such use
may have, in case of a deficiency, upon proprietors lower down the
stream. "^^

The term "natural uses" is probably based on the idea, running
through other branches of the common law, that there is such a
thing as an "ordinary" or "natural" or elemental use of land; a
use, so to speak, for which nature intended it, in contrast with other
uses to which land is put If, in using the land in the natural or
ordinary way, damage follows to a neighbor, it is not wrongful at
law; it is damnum absque injuria. The damage lies where nature

» Lux V. Haggin, 69 Cal. 255, 10
Pac. 674.

10 Stasford v. Felt, 71 Cal. 249, at
251, 16 Pac. 900.

U Barrett v. Metcalfe, 12 Tex. Civ.
App. 247, 33 8. W. 759.

12 Miner v. Gilmour, 12 Moore P.
C. 131, approved recently in White v.
WWte, [1906] App. Cas. 791.

In another English case it is said:
"As to riparian proprietors there is
no question, I think, about the law
upon the subject .... that a ripa-
rian proprietor has the paramount
right to take what water he likes from

the river for usual domestic purposes.
I do not say how widely the term ' do-
mestic purposes' may esttend. Un-
questionably it would extend to culin-
ary purposes and to purposes of
cleansing, washing, the feeding and
supplying of an ordinary quantity of
cattle, and so on." Lord Bomilly in
Attorney General v. Great Eastern By.
Co., 23 L. T., N. 8., 344.

Angell on Watercourses, section
121, says the distinction of natural
uses originated in the Bllnois case of
Evans v. Merriweather, 3 8eam. 496,
but the foregoing authorities show
the contrary.

456 THE COMMON LAW OF RIPARIAN EIGHTS. S 295

makes it fall. What is such a natural use of land was examined in
the well-known case of Fletcher v. Rylands,^* arriving at the con-
clusion that building a reservoir on it was not a natural use, and
damage to another resulting from a break and escape of the water
cannot be defended, it was held. Lord Cairns, Chancellor, said
that **if, in what I may term the natural user of that land/' damage
had "by the operation of the laws of nature" happened to a neigh-
bor, the neighbor could not have complained that that result had
taken place. ''On the other hand, if the defendants, not stopping
at the natural use of their close, had desired to use it for any pur-
pose which I may term a non-natural use," then the neighbor could
complain of the damage.^^ The same seems the origin of the term
"natural uses" in the use of waters. Living upon the land is a
"natural" use of it, and a use of the water for the necessities of
life of those living there is a taking for a natural use of the land,
in which case damage following to lower proprietors will not be
regarded. "Besides, everything, as it serveth more immediately
or more merely for the food and use of man (as shall be said here-
after) hath the precedent dignity before any others," says Lord
Coke^* with regard to waters. And another old authority says:
"It is also a thing of necessity for the watering of cattle." ^' So,
though the whole stream be consumed for drinking or household
use or watering domestic animals, it is damnum absque injuria be-
cause done in the natural use of the land. It is the same idea as
that in Mr. Justice Temple's opinion in Katz v. Walkinshaw,^*^
concerning percolating water, limiting the cases where the percolat-
ing water may be taken to the damage of a neighbor to those cases
where the taking is for the purpose of the ordinary use of the land
of the taker. It deals with the fitness of purpose of the party
causing the damage, and regards proper purpose in justification
or excuse for the damage so that it becomes damnum absque injuria.
Whether or not this is the true origin of the classification into
natural and artificial uses, it is coming now to be regarded that
the distinction is a rule as to what is reasonable, not alone in it»

13 L. B. 3 H. L. 330. etc. See ante, sec. 283, Natural

14 This classification of uses (and Kifs^ht.

Lord Cairns' opil^ion) is disapproved is Coke on Littleton, lib. 1, cap. 1,

in Brown v. Collins, 53 N. H. 442, 16 sees. 1, 4a.

Am. Bep. 372, saying that there are 16 Shury v. Piggott, 3 Bulst. 339.

no uses that can be called "natural" 17 141 Cal. 116, 99 Am. St. Bep.

any more than others. "Natural 35, 70 Pac. 663, 74 Pae. 766, 64 L.

rights are, in general, legal rights," B. A. 236.

§ 295 LIMITATIONS ON USB OF WATER, 457

purpose (as the foregoing authorities say), but also in its degree of
damage, as in the next section. For the support of life it will usu-
ally be found reasonable to disregard the degree of damage, and to
take the whole stream, but it is coming to be regarded as not a hard-
and-fast rule, if the facts of each case do not bear it* out.** In
Lux V. Haggin *® it is said: **Even the use of water of a stream for
potation may not be of paramount importance, when the stream is
small, and the particular proprietor is amply supplied with water
for such purpose by living springs independent of the creek ; and it
may happen, all the conditions being considered, that the exhaustion
of an entire stream by large bands of cattle ought not to be

permitted Tlie distinction between natural and artificial

'wants' would be, under supposable conditions, somewhat fanciful."
And in Meng v. Coffey:^ **This subject has been confused need-
lessly by the unfortunate use of the words 'natural' and 'ordinary,'
in this connection to distinguish those uses which the common law
does not attempt to limit, and 'artificial' or 'extraordinary' to
designate those which are required to be exercised within reason-
able bounds The law does not regard the needs and de-
sires of the person taking the water solely to the exclusion of all
other riparian proprietors, but looks rather to the natural effect
of his use of the water upon the stream and the. equal rights of
others therein. The true distinction appears to lie between those
modes of use which ordinarily involve the taking of small quanti-
ties, and but little inference with the stream, such as drinking and
other household purposes, and those which necessarily involve the
taking or diversion of large quantities and a considerable infer-
ence with its ordinary course and flow, such as manufacturing pur-
poses. The purpose of the law is to secure equality in the use
of the water by riparian owners, as near as may be, by requiring
each to exercise his rights reasonably, and with due regard to the
right of other riparian owners to apply the water to the same
or to other purposes. This purpose is not subserved by any ar-
bitrary classification. " ^^

18 Wiggins V. Museupiabe etc. Co., Hathawaj, 67 Neb. 325, 108 Am. St.

113 Cal. 182, 54 Am. St. Bep. 337, 45 Rep. 647, 93 N. W. 781, 60 L. R. A.

Pac. 160, 32 L. B. A. 667. 889. See* also, Rogers v. Overacker.

i» 69 Cal.. 255, 10 Pac. 674. 4 Cal. App. 333, 87 Pac. 1107; Jones

20 67 Neb. 500, 108 Am. St. Rep. v. Conn, 39 Or. 30, 87 Am. St. Rep.
697,' 93 N. W. 715, 60 L. R. A. 910. 634, 64 Pac. 855, 65 Pac. 1068, 54

21 To the same effect, Crawford v. L. R. A. 630. Infra, sec. 309.

458

THE COMMON LAW OF RIPARIAX BIGHTS.

S 296

The modern tendency is thus to disregard the classification into
natural and artificial uses, and to view all uses (''natural" uses
included) not alone from the reasonableness of the purpose of the
taker, but also, in all cases, from the reasonableness of the degree
of damage from the taking or use, upon the complaining proprie-
tors"

§ 296. Artificial Uses — (Business Uses). — Artificial uses are
all those that do not minister directly to the necessities of life upon
the land, such as uses for the purpose of improvement, trade or
profit. These include fishing, bathing, boating, fioatage, diversion
for irrigation, the running of machinery and all the many other
varied purposes for which water can be used. The early common-
law cases dealt, aside from domestic use or "natural uses," chiefiy
with use for mill or power purposes,^ and this is just as permissible
to-day in the West.^

For these business uses the riparian owner can never take all
to the exclusion of others.^ He can take only what is reasonable,
with due regard to the uses of others on the same stream.^ "While
the law permitted damage from "natural uses," regardless of de-
gree of damage, for other uses it is damnum absque injuria only
to a certain extent — a question of degree in each case. What is a
reasonable use is a question of fact to be decided in each case.^

22 But a preference to domestic
uses ifl Bometimes introduced in the
law of appropriation by statute. See
ante, see. 51.

28 E. g.y Tyler v. Winkinson, 4
Mason, 397, Fed. Cas. No. 14,312;
Prentice v. Geiger, 74 N. Y. 341.

24 <<The objection that the petition
does not sufficiently alle^ a reason-
able use by plaintiff can be uphehl
only on the theory that no other use
is reasonable that interferes with ir-
rigation. The right and reasonable-
ness of use of water power to propel
a flouring-mill by a riparian owner
needs no justification. It has been
practiced and protected ever since
English law began." Gline v. Stock,
71 Neb. 70, 98 N. W. 456, 102 N. W.
265. See Stanford v. Felt, 71 Gal.
249, 250, 16 Pac. 900, dictum; Ealama
Co. V. Kalama Co. (Wash.), 94 Pac.
469.

25 Learned v. Tangeman, 65 Cal.
334, 4 Pi\c. 191; Gould v. Stofford,
7 Cal. 66, 18 Pac. 879; Alta etc. Co.

V. Hancock, 85 Cal. 219, 20 Am. St.
Rep. 217, 24 Pac. 645; Harris v.
Harrison, 93 Cal. 676, 29 Pac. 325.

29 Ibid,; and Lux v. Haggin, 69
Cal. 255, at 394, 397, 10 Plic. 674;
Ferrea v. Knipe, 28 Ckl. 344; Hale
▼. McLea, 53 Cal. 578; Stanford
V. Felt, 71 Cal. 249, 16 Pac. 900;
Heilbron v. Land and Water Co., 80
Cal. 189, 22 Pae. 62 (must be reason-
able). See Stenger. v. Tharp (S.
Dak.), 94 N. W. 402; Morris v. Bean,
(Mont.), 146 Fed. 431; Union Min.
Co. V. Ferris, 2 Saw. 176, Fed. Cas.
No. 14,371; Same v. Dangberg, 2
Saw. 450, Fed. Oeib. No. 14,370 ; Swift
V. Goodrich, 70 Cal. 103, 11 Pac. 561 :
Gould v. Stafford, 77 Cal. 66, 18 Pac.
879; Durga v. Lincoln etc. Co.
(Wash.), 92 Pac. 343.

27 Ihid.; Stanford v. Felt, 71 Cfel.
249, 16 Pac. 900; Heilbron v. L. ft
W. Co., 80 Cal. 194, 22 Pae. 62;
Meng V. Coffey, 67 Neb. 500, 108 Am.
St. Rep. 697, 93 N. W. 715, 60 L. B.
A. 910.

§ 296 LIMITATIONS ON USE OF WATER. 459

The decision must be made, "reference being had to the use re-
quired by the others. "^^ The necessity of one proprietor, how-
ever pressing, is not the sole measure, though he took no more than
necessary for his use; it must be in comparison with the necessi-
ties of the other owners.^

The State owning riparian land cannot as riparian proprietor
take water for thirteen hundred people in a penitentiary and
insane asylum a quarter of a mile from the stream,^ a case in
which the test of ''natural uses^' must give way on the facts be-
cause unreasonable. Likewise the watering of large bands of cat-
tle will not be allowed to the exclusion of other proprietors under
the plea that the watering of cattle is a "natural use."*^ An
irrigation company owning riparian land has not thereby any
greater right than other riparian owners.^^

To point the rule, reference may be made to a New York case
where it is said: "He may also construct orniuuental ponds, and
store them with fish, or use them for his geese, his ducks, or his
swans, so long as the size of the ponds is not so large as to ma-
terially diminish, by evaporation and absorption, the quantity of
water usuaUy flowing in the stream.'' ^ In the arid West at first
sight this would be considered opposed to all ideas of reasonable-
ness, and it is doubtful whether a court would uphold it. Yet it
shows the view of the common law /that each case must be con-
sidered upon its own facts and its own surroundings. Where the
stream is large and the duck-pond small, and the complaining pro-
prietor's irrigation not impaired, and all the evidence is of the
same tenor, probably every common-law court West or East would
protect the pond against what would then be but a willful injury.
On the other hand, if the stream must be hoarded for irrigation,
the duck-pond would not be permitted to impair the use by the ir-
rigators, because, viewing the situation as a whole, the proof would
show it to be unreasonable under the entire evidence.

There is a tendency in the common-law States of the West to
ignore all uses but irrigation, and to disregard any right in a

28 Lux v. Hagrgin, 69 Gal. 255, at 3i Lux v. Haggin, 69 CaL 255, at

ni, 10 Pac. 674. 407, 10 Pac. 674. See 79 Am. Dec.

» Verdugo W. Co. v. Verdugo 642, note.

(Cal. Sup., Jan. 23, 1908), 93 Pac. 32 State v. Superior Court (Wash.),

1021. 90 Pac. 653.

80 Salem etc. Co. v. Lord, 42 Or. 33 Pierson v. Speyer, 178 N. Y. 270,

82, 69 Pac. 1033. 70 Pac. 832. 102 Am. St. Bep. 499, 70 N. E. 799.

460 THE COMMON LAW OF RIPARIAN RIGHTS. § 297

riparian proprietor where his land is incapable of beinj? irrigated.**
This is rather a rule of fact than of law, however. Upon a
stream urgently required for irrigation, and so used by the custom
of the community, any other use impairing irrigation is entitled
to small consideration as matter of fact in determining what is
reasonable. Nevertheless, as a matter of law, all possible uses are
entitled to some consideration in reaching a conclusion, and the
j fact that a riparian proprietor's lands are not irrigable is not
f conclusive that he is entitled to no water, since domestic use or a
mill-power may be possible, or some other of the various purposes
to which w^ter is applicable. As a question of fact, the possibility
of such use may be, and usually is, under the circumstances, en-
titled to little consideration in deciding what is reasonable, and the
tendency undoubtedly is to pass it by where irrigation is in ques-
tion. The usages and wants of the stream community as a whole
form an important circumstance bearing upon what is reasonable
in each case.*^ Correspondingly, where all but one proprietor on
the stream use it for power, the exceptional proprietor would prob-
ably receive less consideration for his irrigation.

We would state the following propositions with regard to per-
mitted cases :

A riparian proprietor may, for the support of life (** natural
uses") on his riparian land, use the water to the damage of an-
other riparian proprietor, such damages being damnum absque in-
juria, regardless of the degree of damage.

He may also, for other useful purposes (** artificial uses") on
and for the benefit of his riparian land, use the water to the dam-
age of another riparian proprietor, but only to a reasonable degree
of damage; such damage being damnum absque injuria only
with regard to the degree of damage in consideration of the necessi-
ties and rights of both; any damage in excess of that reasonable
degree (to be determined in each case) being wrongful.

Where his use is to no possible damage of another, we refer to
the next chapter.

§ 297. Same. — In deciding what is a reasonable use, the de-
cision must be confined to the parties to the litigation as already

34 E. fj-f Southern Cal. Co. v. Wil- Santa Barbara, 151 Cal. 377, 90 Pac.

Bhire, 144 Cal. 68, at 71, 77 Pac. 767, ^^f; ^ . , . ^ ^

' ' ' ' •i'> Parker v. American etc. Co*

quoted infra; Montecito etc. Co. v. (Mass.), 81 N. E. 468.

§ 298 LIMITATIONS ON USE OF WATER. 461

set forth.^ The court cannot entertain a contention that a party's
riparian right should be measured by the total number of pro-
prietors on the stream when they are strangers to the action. For
illustration; a stream flowing five hundred inches may have fifty
proprietors upon it Other things being equal, each would be en-
titled to only ten inches as against all the rest, yet against the
single one with whom he is litigating, this cannot be considered. It
is solely a question of whether he is unreasonably injuring his
opponent without regard to the others, so that, as between the two.
the court might well decree two hundred and fifty inches to each.
This is a principle fundamental in all law, the law of appropria-
tion as well.*^ This is overlooked in a couple of Nebraska cases
which say that where there are a large number of proprietors, the
right of each is infinitesimal and a diversion does him but nominal
damage.^ As between any one of them and another or against a
non-riparian diverter, that is far from true. The rights of the
many others have no bearing upon the suit. As between the two
disputing proprietors, the sole question is what is reasonable be-
tween the two ; and as against the non-riparian diverter, the com-
plaining proprietor is entitled to the entire flow that he could pos-
sibly use, regardless of what the remaining proprietors may be en-
titled to.^ The possible use of a riparian proprietor can be limited
only by the right of another riparian proprietor, and only by such
other as contests it. Authorities setting forth this principle are
elsewhere given.^ If a determination based upon the rights of all
the proprietors is desired, all must be brought into court, and
must join issue inter se.^^

§ 298. Seasonable Use for Irrigation. — ^There was at one time
in the West an attempt to bring irrigation in the arid regions
within the classification of ''natural uses." But this was a mis-
understanding of the application of that term, whicl^ was intended
to classify the uses immediately necessary to sustain life. One
case says: **At an early day there was a tendency to class irriga-
tion among those uses of a stream which might be carried even to

^ Sees. 195, 267. Adly as against an appropriation by

37 Ante, sec. 195. n mere wrongdoer, a riparian pra-

38 McCook Irr. Co. v. Crews prietor may insist upon the entire and
(Neb.), 102 N. W. 249; Cline v. complete natural flow of the stream. "
Stock (Neb.), 102 N. W. 265. ^o Ante, sec. 195.

30 Lux V. Haggin, 69 Cal. 255, at 4i Rickey etc. Co. v. Wood (C. C.

396, 10 Pac. 674, saying: "Undoubt-" A.), 152 Fed. 22.

460 THE COMMON LAW OF RIPARIAN RTGH'^ 9 099

riparian proprietor where his land is incapab^ ^^ ij^g long pre-
This is rather a rule of fact than o^ '.^ fj,g eastern por-

stream urgently required for irrigp*' :^';^d semi-arid States

of the community, any other .'.^^onJaw doctrine as to

to small consideration as ' -^Von is one of those uses

reasonable. Nevertheless .^^i'^ due regard to the rights

fact that a riparian v -^^j. that this was, can constitute

I conclusive that he i' , 'iV^^r riparian owner in taking all

entitled to some consir' -.J'-^aot think that irrigation, at

nnll-power may br ;..^. jW^^^ ^f the ordinary domestic uses

to which w^ter i ' \:'f^fhAo^, in the absence of prior legal

of such use m ,"^ ^ ^ ^^
titled to littl - '"fritf

tendency r ^iXi*^ ^^ but ** natural uses" the riparian pro-
tion. T> ^'*'"^^0f-.^iB use so as not to unreasonably interfere

form P ^^ .^ted '^^ial use of another proprietor. The same is

in ea iw ^^,Uf ^^ as of other us6s for profit.** One riparian

*^® ^ f^'ff^^ t tske water for irrigation to the unreasonable

aV i^^ ^^tbers below, or take all!^ Concerning the reason-

p^^ ^ the riparian proprietor for irrigation, extracts

^tJe ^ veil f^^ some decisions, English and Eastern as well

' H^ ^ fhey all agree; namely, that the use for irrigation is

00 ^^^^'tiiin the limit that it must not imreasonably prevent the

proP^y.y of equal use by the other proprietors.

p<»**' /California case Mr. Justice Shaw said : "Where two persons

ignd along the line of a watercourse, the measure of their

^^iB is °^* necessarily controlled solely by the length of their re-

eetiy^ frontages on the stream. Many other things may enter

42 Meng V. Coffey, 67 Neb. 500, I. 488; Brosnan t. Harris, 39 Or. 148,

.08 Am. St. Rep. 697, 93 N. W. 715, 87 Am. St. Rep. 649, 65 Pac. 867, 54

AO h. R. A. 910, citing Low v. Schaf- u. R. A. 628; EUis v. Tone, 58 Ca].

fer, 24 Or. 239, 33 Pac. 678; Gillett 289; Harris v. Harrison, 93 GaL 676,

V. Johnson, 30 Conn. 180; Black's 29 Pac. 325; Lord v. Meadville Water

pomeroy on Water Rights, sec. 151 ; Co., 135 Pa. St. 122, 20 Am. St. Rep.

Gould on Waters, sees. 205, 217. 864, 19 Atl. 1007, 8 L. R. A. 202;

4S Nielson v. Sponer (Wash.), 89 Pomeroy on Water Rights, see. 134;

Pac. 155, citing Nesalhous v. Walker, Gould on Waters, sees. 205, 536.

88 Pac. 1032; Smith v. Corbit, 116 f* Lone Tree etc. Co. v. Cyclone

Cal. 587, 48 Pac. 725; Shotwell v. etc. Co., 15 S. Dak. 519, 91 N. W.

Dodge, 8 Wash. 337, 36 Pac. 254; 352; Tolle v. Corrith, 31 Tez. 362,

Benton v. Johncox, 17 Wash. 277, 61 and cases supra.

Am. St. Rep. 912, 49 Pac. 495, 39 45 Learned v. Tangerman, 65 Gal.

L. R. A. 107; Union Mill Co. v. Fer- 334, 4 Pac. 191, and cases supra, see.

ris, 2 Saw. (U. S.) 176, Fed. Gas. 296.
No. 14,371; Howe v. Norman, 13 R.

§ 299 LIMITATIONS ON USE OF WATER. 463

into the* question. One may have a tract of land of such char-
acter that but little use could be made of the water upon it.
while the land of the other may all be so situated that it could
be irrigated with profit and advantage. In Harris v. Harrison,^
it is said: 'In such a case, the length of the stream, the volume of
water in it, the extent of each ownership along the banks, the
character of the soil owned by each contestant, the area sought to
be irrigated by each — all these, and many other considerations,
must enter into the solution of the problem. ' And the general rule
is there stated to be, in cases where there is not water enough
to supply the wants of both, that each owner has the right to the
reasonable use of the water, taking into consideration the rights and
necessities of the other."*'' In Nevada Judge Hawley said:
"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
irrigation. It is declared in all the authorities upon this subject
that it is impossible to lay down any precise rule which will be
applicable to aU cases. The question may be determined in each
case, with reference to the size of the stream, the velocity of the
water, the character of the soil, the number of proprietors,* the
amount of water needed to irrigate the lands per acre, and a
variety of other circumstlinces and conditions surrounding each
particular case; the true test in all cases being, whether the use is
of such a character as to materially affect the equally beneficial use
of the waters of the stream by the other proprietors."** In a
Nebraska case: *^ ''The common law seeks to secure equality in use
of the water among all those who are so situated that they may use
it. It does not give to any riparian owner property in the corpus of
the water, either so as to be able to take all of it, or so as to insist
that every drop of it flow in its natural channel.*^ When, therefore,
counsel tell us that their clients have a natural right to irrigate,
and that reasonable use of the water is necessary in exercise of
that right, they urge nothing against the rules of the conunon law,

46 93 CaL 681, 29 Pac.^325^ ^^ 48 Jones v. Adama, 19 Nev. 78, 3

4» Meng V. Coffey, 67 Neb. 500,
108 Am. St. Rep* 697, 93 N. W. 715,
60 L. B. A. 610.

47 iSouthern Cal. etc. Co. v. Wil
shire, 144 Cal. 68, at 71, 77 Pac.' 767
See, also, Gutierrez v. Wege, 145 Cal
730, 79 Pac. 449; Anaheim etc. Co
V. PuUer, 150 Cal. 327, 88 Pac. 978; ^ .

Nesalhous v. Walker (V^ash.), 88 Pac. ^ ^Titing Vernon Irr. Co. v. Los

1032 Angeles, lu6 Cal. 237, 39 Pac. 762.

462

THE COMMON LAW OF RIPARIAN RIGHTS.

§ 299

entire consumption of its waters. But another view has long pre-
vailed, and is now well established, not only in the eastern por-
tion of the country, but even in the arid and semi-arid States
(so far as such States recognize the common-law doctrine as to
riparian rights), to the effect that 'irrigation is one of those uses
which must be exercised reasonably with due regard to the rights
of others.*^''. And another: "We do not think that irrigation, at
least when conducted in the manner that this was, can constitute
a use which will justify an upper riparian owner in taking all
of the water, to the destruction of the ordinary domestic uses
thereof by a riparian owner below, in the absence of prior legal
appropriation. ' ' ^

§ 299. Same. — ^For all but ** natural uses" the riparian pro-
prietor is limited in his use so as not to unreasonably interfere
with the equally beneficial use of another proprietor. The same is
true of irrigation just as of other us^s for profit.** One riparian
proprietor cannot take water for irrigation to the unreasonable
exclusion of others below, or. take all.^ Concerning the reason-
able use allowed the riparian proprietor for irrigation, extracts
are here given from some decisions, English and Eastern as well
as Western. They all agree; namely, that 'the use for irrigation is
proper within the limit that it must not unreasonably prevent the
possibility of equal use by the other proprietors.

In a California case Mr. Justice Shaw said: ''Where two persons

own land along the line of a watercourse, the measure of their

rights is not' necessarily controlled solely by the length of their re-

' spective frontages on the stream. Many other things may enter

42 Meng V. Coffey, 67 Neb. 500,
108 Am. St. Rep. 697, 93 N. W. 715,
60 L. B. A. 910, citing Low v. Schaf-
fer, 24 Or. 239, 33 Pae. 678; OiUett
V. Johnson, 30 Conn. 180; Black's
Pomeroy on Water Bights, sec 151;
Gould on Waters, sees. 205, 217.

« Nielson v. Sponer (Wash.), 89
Pac. 155, citing Nesalhous y. Walker^
88 Pac. 1032; Smith v. Corbit, 116
CaL 587, 48 Pac. 725; Sbotwell v.
Dodge, 8 Wash. 337, 36 Pac. 254;
Benton v. Johncox, 17 Wash. 277, 61
Am. St. Bep. 912, 49 Pac. 495, 39
L. B. A. 107; Union Mill Co. v. Fer-
ris, 2 Saw. (U. S.) 176, Fed. Cas.
No. 14,371; Howe y. Norman, 13 B.

I. 488; Brosnan t. Harris, 39 Or. 148,
87 Am. St. Bep. 649, 65 Pac. 867, 54
\j. B. A. 628; Ellis y. Tone, 58 Cal.
289; Harris y. Harrison, 93 GaL 676,
29 Pac. 325; Lord y. MeadyiUe Water
Co., 135 Pa. St. 122, 20 Am. St. Bep.
864, 19 Atl. 1007, 8 L. B. A. 202 ;
Pomeroy on Water Bights, sec. 134;
Gould on Waters, sees. 205, 536.

44 Lone Tree etc. Co. y. Cydone
etc. Co., 15 S. Dak. 519, 91 N. W.
352; ToUe y. Corrith, 31 Tex. 362,
and cases supra.

45 Learned y. Tangerman, 65 Cal.
334, 4 Pac. 191, and cases supra, sec
296.

§ 299 LIMITATIONS ON USE OF WATER. 463

into the- question. One may have a tract of land of such char-
acter that but little use could be mi^de of the water upon it,
while the land of the other may all be so situated that it could
be irrigated with profit and advantage. In Harris v. Harrison,^
it is said: 'In such a case, the length of the stream, the volume of
water in it, the extent of each ownership along the banks, the
character of the soil owned by each contestant, the area sought to
be irrigated by each — all these, and many other considerations,
must enter into the solution of the problem. ' And the general rule
is there stated to be, in cases where there is not water enough
to supply the wants of both, that each owner has the right to the
reasonable use of the water, taking into consideration the rights and
necessities of the other."*'' In Nevada Judge Hawley said:
** 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
irrigation. It is declared in all the authorities upon this subject
that it is impossible to lay down any precise rule which will be
applicable to all cases. The question may be determined in each
casa 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 circumst&nces and conditions surrounding each
particular case; the true test in all cases being, whether the use is
of such a character as to materially affect the equally beneficial use
of the waters of the stream by the other proprietors."^ In a
Nebraska case: ^ **The common law seeks to secure equality in use
of the water among all those who are so situated that they may use
it. It does not give to any riparian owner property in the corpus of
the water, either so as to be able to take all of it, or so as to insist
that every drop of it flow in its natural channel.*^ When, therefore,
counsel tell us that their clients have a natural right to irrigate,
and that reasonable use of the water is necessary in exercise of
that right, they urge nothing against the rules of the common law,

46 93 Cal. 681, 29 Pac. 325. 48 Jones v. Adams, 19 Nev. 78, 3

47 Southern Cal. etc. Co. v. Wil- ^m. St. Rep. 788, 6 Pac. 442.

no: T^vlfui; AnThX etc Co: J^«/-- S*- ^^^ «^7, 93 N. W. 715,

V. PuUer, 150 Cal. 327, 88 Pac. 978; "" ^' "* ^- ''^"•
Nesalbous v. Walker (Wash.), 88 Pac. '^ Siting Vernon Irr. Co. v. Los

1032 Angeles, lu6 Cal. 237, 39 Pac. 762.

460 THE COMMON LAW OF RIPARIAN RT^ ^ ^ 299

riparian proprietor where his land is ine*- . -' '^^ir has long pre-

This is rather a rale of fact f^ ^ j^/^^^ the eastern por-

stream urgently required f o^ ' , • / '^rfiod semi-arid States

of the community, an; ! ;fv^/A'^on-law doctrine as to

to small consideratioT . ,> '/<^f/on is one of those uses

reasonable. Neverth .. ; ^^>if j^ due regard to the rights

entitled to some c' '•\:''7y'^^ think that irrigation, at

j fact that a ripa^ • .-.: j^t^/T^V that this was, can constitute

/ conclusive that ' , ^ W'"^^^ ^^r riparian owner in taking aU

( mill-power ma- V V*^' "iJo^ ^' ^^^ ordinary domestic uses

I to which wat ' ^^V^ir^^'freJow, in the absence of prior legal

• of such USr ,^'>; f^L 0^'

titled tor ;^/^c5^

tendenc* /^«0^^ all but ** natural uses" the riparian pro-

tion. ,f>r^ ^'- /,/» use so as not to unreasonably interfere

f orn* ^ ^ j.^ted ' ^gjal use of another proprietor. The same is

^^ pf^ effl^ jjjst as of other usto for profit.** One riparian

^^ ^^Ifj^^^^^ot t*^® water for irrigatfon to the unreasonable

^^e^ ^^^eTs below, or. take all!* Concerning the reason-

^^vfi^ lowed the riparian proprietor for irrigation, extracts

^jg u^ * ,j from some decisions, English and Eastern as well

^ ^^-fl They all agree ; namely, that the use for irrigation is

^ ^ witb^^ t^® limit that it must not unreasonably prevent the

p^^'Uiy ot equal use by the other proprietors.

P^ California case Mr. Justice Shaw said: ** Where two persons

jBod along the line of a watercourse, the measure of their

^. 2j^ is not* necessarily controlled solely by the length of their re-

^ eetive frontages on the stream. Many other things may enter

42 Meng V. Coffey, 67 Neb. 500, I. 488 ; Brosnan t. Harris, 39 Or. 148,

J08 Am. St. Rep. 697, 93 N. W. 715, 87 Am. St. Rep. 649, 65 Pac. 867, 54

$0 h. R. A. 910, citing Low v. Sehaf- u. R. A. 628; Ellis v. Tone, 58 Gal.

iet, 24 Or. 239, 33 Pac. 678; GiUett 289; Harris v. Harrison, 93 GaL 676,

V. Johnson, 30 Conn. 180; Black's 29 Pac. 325; Lord v. Meadville Water

pomeroy on Water Rights, sec 151 ; Co., 135 Pa. St. 122, 20 Am. St. Rep.

Gould on Waters, sees. 205, 217. 864, 19 Atl. 1007, 8 L. R. A. 202;

^ Nielson v. Sponer (Wash.), 89 Pomeroj on Water Rights, sec. 134;

Pac. 155, citing Nesalhous v. Walker, Oould on Waters, sees. 205, 536.
88 Pac. 1032; Smith v. Corbit, 116 *4 Lone Tree etc. Co. v. Cyclone

Cal. 587, 48 Pac. 725; Shotwell v. etc. Co., 15 S. Dak. 519, 91 N. W.

Dodge, 8 Wash. 337, 36 Pac. 254; 352; Tolle v. Corrith, 31 Tex. 362,

Benton ▼. Johncox, 17 Wash. 277, 61 and cases supra.
Am. St. Rep. 912, 49 Pac. 495, 39 45 Learned v. Tangerman, 65 Cal.

L. R. A. 107; Union Mill Co. v. Fer- 334, 4 Pac. 191, and cases tupra, sec

ris, 2 Saw. (U. S.) 176, Fed. Cas. 296.
No. 14,371; Howe t. Norman, 13 R.

§ 299 LIMITATIONS ON USE OF WATER. 463

into the* question. One may have a tract of land of such char-
acter that but little use could be made of the water upon it,
while the land of the other may all be so situated that it could
be irrigated with profit and advantage. In Harris v. Harrison,^
it is said: 'In such a case, the length of the stream, the volume of
water in it, the extent of each ownership along the banks, the
character of the soil owned by each contestant, the area sought to
be irrigated by each — all these, and many other considerations,
must enter into the solution of the problem.' And the general rule
is there stated to be, in cases where there is not water enough
to supply the wants of both, that each owner has the right to the
reasonable use of the water, taking into consideration the rights and
necessities of the other."*'' In Nevada Judge Hawley said:
"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 resx)ective lands for the purpose of
irrigation. It is declared in all the authorities upon this subject
that it is impossible to lay down any precise rule which will be
applicable to all cases. The qiiestion may be determined in each
case with reference to the size of the stream, the velocity of the
water, the character of the soil, the number of proprietors,* the
amount of water needed to irrigate the lands per acre, and a
variety of other circumst&nces and conditions surrounding each
particular case ; the true test in all cases being, whether the use is
of such a character as to materially affect the equally beneficial use
of the waters of the stream by the other proprietors."** In a
Nebraska case: ^ ''The common law seeks to secure equality in use
of the water ainong all those who are so situated that they may use
it. It does not give to any riparian owner property in the corpus of
the water, either so as to be able to take all of it, or so as to insist
that every drop of it flow in its natural channel.*^ When, therefore,
counsel tell us that their clients have a natural right to irrigate,
and that reasonable use of the water is necessary in exercise of
that right, they urge nothing against the rules of the conunon law,

46 93 CaL 681, 29 Pac.^325^ ^^ 48 Jones v. Adams, 19 Nev. 78, 3

« Meng V. Coffey, 67 Neb. 500,
108 Am. St. Bep. 697, 93 N. W. 715,
60 L. R. A. 610.

4T iSouthem Cal. etc. Co. v. Wil-
shire, 144 Cal. 68, at 71, 77 Pac* 767.
See, also, Gutierrez y. Wege, 145 Cal.
730, 79 Pae. 449; Anaheim etc. Co.

V. Puller, 150 Cal. 327, 88 Pac. 978; . ^ . ,. ^ ^

Nesalhous v. Walker (Wash.), 88 Pac. , '^ p<^°g Vernon Irr. Co. v. Los
1032 Angeles, lu6 Cal. 237, 39 Pac. 762.

466

THE COMMON LAW OF RIPARIAN RIGHTS.

§ 300

each one of these can use it for the irrigation of his estate or. for
auy other object, but not the whole of it, but only the part which
corresponds to him, because both have equal rights, and the one
can consequently oppose use of it all by the other, or even a part
considerably more than his own. " »

The principle of equality is the foundation of the common law
in all jurisdictions. English and Eastern cases presented difiB-
culties of fact in equalizing uses for different purposes (e. g., a
mill and an irrigator on the same stream). The difference in the
West is merely the greater simplicity of fact because usually irri-
gation is alone the predominating use, so that equality becomes
more easily attainable as a matter of division and apportionment.

§ 300. Apportionment.-^To secure to all contesting proprietors
the reasonable use to which each is entitled, a court of equity will,
if necessary, apportion the water .^,. This was comparatively early
said to be well settled and not a Western innovation, and Professor
Pomeroy, cited in the preceding note, says it is a matter regularly
within the jurisdiction of equity.*^

The apportionment may be measured in any manner best cal-
culated to a reasonable result. ''Riparian owners are not to be
debarred from use of water because the season is dry and the
stream low."®^ In apportioning the water, the court of equity
will' adopt any mode that is reasonable on the facts to secure
equality. For the protection of the rights of the several riparian
proprietors it has been held that a court of equity may, in a proper
case, apportion the flow of the stream, after the natural wants of
the several proprietors have been satisfied, in such a manner as
may seem equitable and just under the circumstances.^ The ap-

se HaU's Mexican Law, see. 1391.
See the Code Napoleon and other
civil-law authorities given supra, sec'
269.

60 Harris v. Harrison, 93 Cal. 676,
29 Pae. 325; Wiggins v. Muscupiabo
etc. Co., 113 Cal. 182, 54 Am. St.
Rep. 337, 45 Pac. 160, 32 L. B. A.
667; Smith v. Corbit, 116 Cal. 587, 48
Pac. 725. See Metcalf v. fViucher
(Tex. Civ. App.), 99 S. W. 1038.
It is said that this will be done with
percolating waters also. Katz v.
Walkinshaw, 141 Cal. 116, 99 Am.
St. Bep. 35, 70 Pac. 663, 74 Pac. 766,
64 L. R. A. 236, as to which, see
GlasseU v. Verdugo, 108 Cal. 503, 41

Pac. 403; Verdugo Co. v. Verdugo
(Cal. Sup., Jan. 23, 1908), 93 Pae.
1021.

61 McKee, J., in Anaheim W. Co.
V. Semi-Tropic W. Co., 64 CaL 197, 30
Pac. 623; Pomeroy on Riparian
Rights, sec. 155, relying on a New
York case. See, also, 1 Pomeroy 's
Equity, sees. 255, 275.

62 Meng V. Coffey, 67 Nob. 500,
108 Am. St. Rep. 697, 93 N. W. 715,
60 L. R. A, 910.

68 Jones V. Conn, 39 Or. 30, 87 Am.
St. Rep. 634, 64 Pac. 855, 65 Pac.
1068, 54 L. R. A. 630, citing the. Cali-
fornia cases 8upra.

§ 299 LIMITATIONS ON USE OF WATER. 463

into the- question. One may have a tract of land of such char-
acter that but little use could be mi^de of the water upon it.
while the land of the other may all be so situated that it could
be irrigated with profit and advantage. In Harris v. Harrison,^
it is said: 'In such a case, the length of the stream, the volume of
water in it, the extent of each ownership along the banks, the
character of the soil owned by each contestant, the area sought to
be irrigated by each — all these, and many other considerations,
must enter into the solution of the problem. ' And the general rule
is there stated to be, in cases where there is not water enough
to supply the wants of both, that each owner has the right to the
reasonable use of the water, taking into consideration the rights and
necessities of the other."*'' In Nevada Judge Hawley said:
'* 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
irrigation. It is declared in all the authorities upon this subject
that it is impossible to lay down any precise rule which will be
applicable to all cases. The question may be determined in each
case with reference to the size of the stream, the velocity of the
water, the character of the soil, the number of proprietors,* the
amount of water needed to irrigate the lands per acre, and a
variety of other cireumst&nces and conditions surrounding each
particular case ; the true test in all cases being, whether the use is
of such a character as to materially affect the equally beneficial use
of the waters of the stream by the other proprietors."*® In a
Nebraska case: *^ ''The common law seeks to secure equality in use
of the water among all those who are so situated that they may use
it. It does not give to any riparian owner property in the corpus of
the water, either so as to be able to take all of it, or so as to insist
that every drop of it flow in its natural channel.*^ When, therefore,
counsel tell us that their clients have a natural right to irrigate,
and that reasonable use of the water is necessary in exercise of
that right, they urge nothing against the rules of the common law,

46 93 CaL 681, 29 Pac.^325. ^^ 48 Jones v. Adama, 19 Nev. 78, 3

^ Meng V. Coffey, 67 Neb. 500,
108 Am. St. Rep. 697, 93 N. W. 715,
60 L. B. A. 610.

« Southern Cal. etc. Co. v. WW-
shire, 144 Cal. 68, at 71, 77 Pac.' 767.
See, also, Gutierrez y. Wege, 145 Cal.
730, 79 Pac. 449; Anaheim etc. Co.
V. PuUer, 150 Cal. 327, 88 Pac. 978;
Nesalhous v. Walker (Wash.), 88 Pac. '^ C^i<^°g Vernon Irr. Co. v. Los

1032 Angeles, lu6 Cal. 237, 39 Pac. 762.

468 THE COMMON LAW OF RIPARIAN RIGHTS. § 300

'this apportionment should be for alteraate weeks or alternate
days, or for a specific portion of each day, must be deter-
mined by the facts of each case."*^^ For example in Harris
V. Harrison,*^^ the leading case,"^^ each was awarded the entire flow
for three and one-half days out of seven. In another case ''^ plain-
tiffi»' land contained about two thousand acres, and the court found
that fifty acres of it were adapted to cultivation and were suscep-
tible of irrigation, and that only three acres and a fraction of de-
fendant's land were adapted to cultivation and irrigable; and it
found that a fair proportionate division of the water of the creek,
for irrigation, would give to plaintiffs the entire flow of the creek
for twenty days out of every twenty-one days, and to defendant the
entire flow of the creek for one day out of every twenty-one days ;
and judgment was rendered in accordance with this finding, and
affirmed on appeal.

The apportionment may be applied to use for domestic purposes
(** natural uses") under the view that all uses are tested by the rule
of reasonableness in effect as well as reasonableness of purpose '^^
In one case it is said i''^ * * But it does not follow — as is. also found
by the court^ — that they are entitled to continuous flow of two inches
or any other quantity in the ditch, and such a requirement, we
think, would be unreasonable. The flow of water in a stream may,
and when necessary should, be apportioned between the parties in-
terested *by periods of time, rather than by a division of its quan-
tity' and artificial means of conducting it may be allowed, instead of
the natural channel. Or, indeed, it would be in the power of the
court to hold that the demands of the plaintiffs entitled to water for
domestic use are sufficiently supplied by the constant flow of the
water by their places for eighteen hours, to which is to be added,
in case the rights of the plaintiffs to the other water in question be
established, an additional flow of two or three hours, or perhaps
more. '^'^^ •

70 Accord Gutierrez v. Wege, 145 74 Wiggins v. Muscupiabe etc. Co.,

Cal. 730 79 Pac. 449. 1J3 0^1. 191, 54 Am. St. Rep. 337, 45

Ti 93 Cal. 676, 29 Pac. 325. p^c. 160, 32 L. R. A. 667.

72 See an earner opinion to the .,..,. r^ ^t. tit i. /-, u,
same effect by McKee, J., in Anaheim ^ V* ^,™^«^.^/ Cmf ton Water Co., 141
W. Co. V. Semi-Tropic W. Co., 64 Cal. ^^^' ^'^' '* ^^^' '^^'

185, 197, 30 Pac. 623. ^** See, also, Anderson v. Baesman,

73 Gutierrez v. Wege, 151 Cal. 587, 140 Fed. 14; Rogers v. Overacker, 4
91 Pac. 395. ^al- App. 333, 87 Pac. 1107.

§ 300 LIMITATIONS ON USE OF WATER. 469

Where the facts warrant it, an equal distribution will be de-
creed.'" **If every riparian proprietor on a given sti^eam owned
the same quantity of land, with the same frontage on the stream,
and the same susceptibility to and need of irrigation, each would be
entitled to precisely the same quantity of water for that pur-
pose. ' ' ^ And in another case it is said : * * While the distribution
of the waters of the stream among riparian owners, according to
common-law principles, is most di£9cult, where the stream is long,
the riparian owners numerous, and the quantity of water limited,
yet in this case each of the parties owns the same quantity of land,
of substantially the same character, their necessities and conditions
are substantially the same, and an equal distribution of the waters
of the creek between them will mete out substantial justice as
nearly as substantial justice can be attained." ^

There can be no apportionment by either time or volume in the
absence of evidence of all surrounding circumstances bearing upon
what would be reasonable.^

As shown below,^* an apportionment made at one time is not
necessarily conclusive at a later point of time, when the circum-
stances on which it is based have changed.^ The apportionment
is decreed in equity to afford equality on the facts existing at the
time ; on the circumstances then existing. ;When the circumstances
change so that the decree no longer represents equality and rea-
sonable division, then a readjustment must be had under the new
conditions.. A system accepting as its ground principle the deter-
mination of what is reasonable in each case, cannot in its nature
be a system of permanent fixedness, such as is the system of ap-
propriation, frhe apportionment is permanent only if the sur-
rounding circumstances on which it was founded remain un-
changed, so that the equality of the apportionment is not de-
stroyed; and ceases to be permanent .when a subsequent change
of circumstances has destroyed the reasonableness of the adjust-
ment For example, an apportionment based on the quantity
of wter needed to irrigate certain crops where both parties grow

T7 E. g., Harris v. Harrison, 9upra. y. Sargent, 112 Cal. 230, 44 Pac. 560;

78 Charnock v. Higuerra, 111 Cal. Rogers v. Ovwaeker, 4 Cal. App. 333,
479, 52 Am. St. Rep. 195, 44 Pae. 87 Pac. 1107; Riverside W, Co. v.
171, 32 L. R. A. 190. Qage, 89 Cal. 410, 26 Pac. 889; Mon-

79 Nesalhous v. Walker (V^ash.), tecito Co. v. Santa Barbara, 151 0^1.
88 Pftc. 1032. 377, 90 Pac. 935.

80 Coleman v. Le Franc, 137 Cal. «« «__ qn«
214, 69 Pac. 1011 ; Riverside W. Co. °^' '^^^^'

470 THE COMMON LAW OF RIPARIAN RIGHTS. §§ 301, 302

the same kind, would work great injustice when one party
changes to crops requiring much less water, while the other
changes to crops needing more. To make them share in the same
proportion as before would work great injustice to one, simply
to permit waste by the other.

« ■

§ 301. Uanner of Use.— tThe manner of use must be reasonable, i
The riparian proprietor must divert on his own land.®* Waste
will be enjoined,®^ as where water is spread out so that it will
be lost by evaporation,^ or wjiere it is ditched through porous
soil in such a way that m,uch or all is lost before reaching the end
of the ditch.^ The means of use are immaterial and the taking
may be by a seepage tunnel.^ It is no objection to pumps th^t the
water is raised to a level. to which it would not otherwise flow, so
'long as it is properly used at tfeat level.** Two or more riparian
proprietors may join in a common diversion if they take no more
than their combined share.®'''

§ 302. Betum of Surplus. — ^While a riparian owner may divert
the water within the above limitations^ the surplus must in any case
be returned to the stream, and must be returned above the upper
line of the land of lower claimants,®®^, whether the use is for irri-
gation or water power or any other purpose.®® The manner of
return is immaterial .^ For example of what is held unreasonable,
the facts in Meng v. Coflfey were: **It takes the water away from
the creek to a point about a mile off, where the dip is but very
slightly toward the creek, and there discharges it, so that practically

81 Cal. etc. Co. v. Enterprise etc. ®^ Verdugo W. Co. v. Verdugo

Co. 127 Fed. 741. (^*^* ®"P-» •^*°* 2^» 1^08), 93 Pac.

.nf S^^JF^^^o""- ^^"^^ ^^ ^^' ^^^^Bathgate v. Irvine, 126 Cal. 135,

503, 64 Pac «2 ; McCluitock v. Hud- 77 ^^ St. Bep. 158, 58 Pac. 442;

son, 141 Cal. 275, 74 Pac. 849. j^^^g ^ Coffey, 67 Neb. 500, 108 Am.

83 Ferrea v. Knipe, 28 Cal. 340, 87 St. Bep. 697, 93 N. W. 715, 60 L. B.
Am. Dec. 128; Bameich v. Merej, A. 910; Niebon v. Sponer (Wash.),
136 Cal. 205, 68 Pac. 589. 88 Pac. 155, saying a statute to the

84 Shotwell V. Dodge, 8 Wash. 337, contrary would be unconstitutional.
36 Pac. 254; Nielson v. Sponer ^ ^^^ v. Oregon etc. Co., 13 Or.
(Wash.), 88 Pac. 155. ^96^ IJ Pa«- 255.

^ ^/^' ^ 1. TT J lA-i n ^ ^ Mason v. Cotton (C. C), 4 Fed.

85 McOintock V. Hudson, 141 Cal. 7^3^ g McCrary, 82; Gould v! Eaton,

275, 74 Pac. 849. 117 Cal. 539, 49 Pac. 577, 38 L. B.

86 Chamoek v. Higuerra, 111 Cal. A. 181; Wiggins v. Muscupiabe etc.
473, 52 Am. St. Bep. 195, 44 Pac. 171, Co., 113 Cal. 182, 54 Am. St. Bep.
32 L. B. A. 190. 337, 45 Pac. 160, 32 L. B. A. 667.

§ 302 LIMITATIONS ON USE OP WATER. 471

all that is not used in irrigation will, in hot weather, evaporate,
and not return to the creek. On One occasion, when the season
was very dry in that vicinity, and a number of Mr. Brewster's
neighbors below him were complaining because they could get no
water, it appears that he was turning the water upon a meadow
of eighty to one hundred acres, so that it stood there from one to
one and one-half inches deep ; and, as we have seen, what was not
used was substantially wasted. This is obviously unreasonable."

472 THE COMMON LAW OF RIPARIAN RIGHTS. 8 303

CHAPTER VI.

LIMITATIONS ON USE OP WATER (CONTINUED)— USE

CONFINED TO RIPARIAN LAND.

8 303. Use confined to riparian land.

8 304. What is riparian land-^Must touch the stream.

8 305. Same — Receding from the stream — Land title.

8 306. Same.

8 307. Same.

8 308. Same — Within the watershed.

8 309. Bounded by reasonableness in each case.

8 310. Non-riparian use by both parties.

8 311. Conclusions as to riparian land.

8 311a. Indefiniteness of the common law.

§ 303. Use Oonflned to Riparian Land. — The limitation to
riparian land arises, first, by the exclusion of non-riparian owners
because their lands have no access to the water; second, by the
necessity that he who has access (the riparian proprietor) can exr
cuse the damage (which any taking may cause to other proprie-
tors) only on the ground of a reasonable ui^e of his own land. The
water in the stream being nobody's property, the riparian proprie-
tors, having alone access, could alone use it.^ Any use by one
at all usually means damage to the others, but such damage is
damnum absque injuria so far (and only so far) as done in the
reasonable use of the taker's own (the riparian) land. U^on-ripar-
ian owners are thus first excluded because they have no access, and
riparian owners (who 'have access) are then confined to use on
their own lands as the ground upon which the damage which the
use causes to other proprietors becomes damnum absque injurioA
This principle that damage caused to another in reasonable use of
one's own land (and there only) is damnum absque injuria runs
through the entire law of waters, as elsewhere more fuUy set f orth,^
and, with the fact of access, founds the limitation to riparian use.^

^^^ •

1 9upra, sec. 276 et seq. ' I^ **^" " ***« ^^^ hasis, the pos-

sibility of damage to the complaining

2 Supra, SOPS. 283, 295; infra, sec. proprietor is an essential element in

374 et seq. the situation. See next chapter.

§ 303

USE CONFINED TO RIPARIAN LAND.

473

The use of the water by any proprietor is not only limited to a
reasonable amount^Cbut the water must be used upon the riparian .
land, from ownership of which the right arises, and cannot be used
upon distant or non-riparian land to the injury of any riparian
owner^^ Such land has no access to the stream, and no right to
the water flows from its ownership/j Water cannot, under the
doctrine of riparian ownership, be used ^ the injury of any ripa-
rian owner to irrigate non-riparian land,^ or for sale on non-
riparian land.^ Nor can a riparian owner as such rightfully
sell or divert to non-riparian lands to the injury of any other
proprietor, water which he has a right to use on riparian land
but which he does not so use.'' In a recent case it is said:®
''But the mere fact, that the company is a riparian owner
on the lake gives it no right whatever to the water of the
lake, except for actual beneficial use upon the land to which the
riparian rights attach."* (Siparian owners will be enjoined from
using the water on non-riparian lands owned by them.^® The
above authorities hold the rule the same whether the non-riparian
use is for non-riparian owners, or for non-riparian lands belong-
ing to a riparian owner7\ [Water cannot be taken to irrigate dis-
tant land merely because the claimant also owns riparian land.^^

In stating the rule above we have used the words *'to^he injury
ofany^other riparian owner, ' ' ** though there is great conflict upon
the propriety^f the insertion and much in the authorities just

4 Gould V. Eaton, 117 Cal. 539, 49
Pac. 577, 38 L. R. A. 181; Gould v.
Stafford, 77 Oal. 66, 18 Pae. 879;
Monteeito etc. Co. v. Santa Barbara,
144 Cal. 578, 77 Pac 1113; Same v.
Same, 151 Cal. 377, 90 Pae. 935;
Broadmoor etc. Co. v. Brookside etc.
Co., 24 Colo. 541, 52 Pac. 792; Swin-
don W. W. Co. t. Wilts etc. Co., L.
B. 7 H. L. 697, and cases cited
throughout this chapter.

« Gould V. Stafford, 77 Cal. 66, 18
Pac. 879; Monteeito etc. Co. y. Santa
Barbara, 144 Cal. 578, 77 Pac. 1113;
Same v. Same, 151 Cal. 377, 90 Pac.
935.

6 Cohen v. La Canada etc. Co., 142
Cal. 437, 76 Pac. 47.

7 Heilbron v. .Canal Co., 75 Cal. 426;
Chauvet v. HiU, 93 Cal. 407, 28 Pac.
1066; Gould v. Eaton, 117 Cal. 539,
49 Pac. 577, 38 L. R. A. 181; Bath-

gate V, Irvine, 126 Cal. 135, 77 Am.
St. Bep. 158, 58 Pac. 442; Crawford
y. Hathaway, 67 Neb. 325, 108 Am.
St. Bep. 647, 93 N. W. 781, 60 L. B.
A. 889; McCarter v. Hudson etc. Co.,
70 N. J. £q. 695, 65 Atl. 489.

8 Duckworth v. Watsonyille etc.
Co., 150 Cal. 520, 89 Pac. 338.

9 Note the words "beneficial use."

10 Anaheim Water Co. v. Fuller,
150 Cal. 327, 88 Pae. 978.

It Boehmer v. Big Bock etc. Co.,
117 Cal. 19, 48 Pac. 908; Gould v.
Stafford, 77 Cal. 66, 18 Pac. 879.
See Alta etc. Co. v. Hancock, 85 Cal.
219, 20 Am. St. Bep. 217, 24 Pac.
645; Mcaintock v. Hudson, 141 Cal.
281, 74 Pac. 849; Anaheim W. Co. v.
Fuller, supra,

12 See ante, sec. 287, and infra,
sec. 315 et seq.

474 THE COMMON LAW OF RIPARIAN EIGHTS. 8 304

cited which would support a rule that the non-riparian use is an
injury per se, and that no actual or possible damage need be
shown.^^

The rule against non-riparian use applies to '* natural" uses
(domestic uses) with the same force (if not more) as to other or
** artificial "uses.^*

§ 304. What is Riparian Land— Must Touch the Stream.--^

is only the tracts next the stream which are riparian lands, and the
owners of such tracts are alone riparian owners ';J^ They alone
have the right of access from which the right to take the watier
arises. To be a riparian owner one must have access to the stream
over the land he owns.

Lands in the flood plain of a river give rise to a difficult state
of facts. Within a broad shallow bottom the stream may meander
to and fro, at times shifting its course from side to side, but not
filling the whole except in times of flood. The land abutting only
on the outer rim of such a bottom was held ^^ to be riparian when
the stream is swollen. On the other hand, when the stream is
partly dry, the dry spots of what is bed only in time of
flood, now are on the bank. Such botton^ land alternating be-
tween the chairacter of bed and of bank with the altemat-
ling water stage, has been held to be riparian land while dry.^^
In the same case it is left open whether, in determining what land
is riparian, a river is to be considered only with regard to the
surface flow, or whether lands abutting upon the wider space
through which the sub-flow extends, are also to be considered ripa-
rian though not touching the surface flow . That is, whether land
abutting upon the underflow is equivalent to abutting upon the
stream.*®

frhe bed of the stream is not riparian land, nor is one owning
only the bed a riparian proprietorj This was held in Lux v. Hag-
gin *® with regard to the owner of land all cpvered by a swamp
through which a moving current, as of a stream, appeared.

13 See next chapter. 10 Ventura etc. Co. v. Meiners, 136

I* Bathgate v. Irvine, 126 Cal. 135, Cal. 284, 89 Am. St. Bep. 128, 68

77 Am. St. Bep. 158, 58 Pac. 442; Pac. 818.

Broadmoor etc. Go. v, Brookside etc. 17 Anaheim etc. Go. v. Fuller, 150

Go., 24 Golo. 541, 52 Pac. 792. Cal. 337. 88 Pac. 978.

IB Lux T. Haggin, 69 Cal. 255, 10 18 See infra, sec. 353, sub-flow.

Pac. 674. 10 69 GaL 255, at 413, 10 Pac. 674.

S 305 USE CONFINED TO BIPABIAN LAND. fS;

The altitude of the bank does not affect the riparian charaeter\
of the land touching the stream, nor does a high bank upon which |
the water cannot be brought without pumps deprive the owner ofj
use of the water.^^^

§ 306. Beoeding from the Stream — ^Recef»ion of Land Title. —

Looking, for the present, only to land title,[all land is, as an out-
side limit so far as title is alone concerned, riparian, which has
unbroken access to the stream at the time of use thereon. It has
access if there is ng land intervening between it and the stream
belonging to some other person. It is all that land of the bank-
owner extending back from the stream until his land continuity
ends; that land from the end of which the owner may pass con-
tinuously over his own land to the stream without having to go
upon land not owned by him. All such land at the time of use
has access to the stream, and is (so far as land title affects the ques-
tion) riparian. fThe past history of the title has no bearing upon
this simple question of physical fact of access at the time of use, fpr
such lapd at that time has access and is riparian as regards title,
whether held in one parcel from time immemorial, or built up of
numerous small contiguous parcels acquired at different times.
(Remembering always that use. on even riparian land must be]l
reasonable, and that the land must, as a further test, lie within'^
the watershed, as hereafter discussed.)

We have stated that the ownership at time of use alone governs /
the question of title, because upon principle we think this clear;! •
but the authorities are'"'by~'no means"* unanimous. That the
boundary at time of use governs to exclude land formerly but j
not then owned, there is no conflict. Land which was once 1
part of an abutting tract but was severed therefrom by sale
ceases, while so severed, to be riparian for the purpose of use
thereon after the sale, since its right of access i^ lost.^* ;But that
the boundary at times of use governs to include contiguous land '
then owned by the bank-owner, being one of several contiguous

20 Charnock v. Higuerra, 111 Cfel. P»r* .«> eonveyed from aU participa-
478, 52 Am. St. Rep. 195, 44 Pac. i*^" ™. **^® "^ :®L !u "*'^*!^ ,?'*

171, 32 L. B. A. 190 ^'««l "P?""* ."»J*« ^^^^'^^ ' ^^•

' Justice Shaw, in Anaheim W, Co. v.

21 "If the owner of a tract abut- Fuller (Cal. Sup.), 88 Pac. 798.
ting upon a stream conveys to another What the effect of a declaration in
a part of the land not contiguous to the conveyance to the contrary would
the stream, he thereby cuts off the be, see ante, sees. 286, 287, Granf.

476 THE COMMON LAW OF RIPARIAN RIGHTS. § 306

parcels in a chain reaching to the stream but acquired at different
times, is a point upon which the authorities do not agree.

§ 306. Same. — Upon this point the Nebraska court has held
that riparian land stops at the end of a single original entry of
the land from the government when the land was taken up from
the public domain, and that subsequent entries or purchases of

1 contiguous land cannot extend the riparian character thereto.^
The court relied for this on Lux v. Haggin.^

The passage in Lux v. Haggin is : ' ' If, however, lands have been
granted by patent, and the patent was issued on the cancellation
of more than one certificate, the patent can operate by relation
{for the purpose of this suit) to the date of those certificates only,
the lands described in which border on the stream." This
was said **/or the purpose of this suit,** namely, relating back
against an appropriator to determine the dates of priority be-
tween the rival land grants and the water appropriation. Some
land entries had been made before, and some after, Haggin 's
appropriation. The court in Lux v. JIaggin distinctly limited
the ^statement to the purpose of. the case^. which was^ that only
riparian land in private title at the date of an appropriation
of water could claim priority for its riparian right, being merely
a reaffirmance of the well-known principle of Osgood v. Water
Company, cited and relied on, Lux v. Haggin saying:^ **It was
there held that .... the rights of the pre-emption claimant, as
against an appropriator, date only from his patent or certificate

i;of purchase." Lux v. Haggin consequently was not at all hold-
ing as to the extent of riparian land ^t common law between ripa-
irian proprietors, but holding that the riparian right as against a

ji subsequent appropriator relates back only for the purpose of the
land bordering on the stream whose certificates (or entry) existed
at the date of the appropriation; a prior appropriation prevailing
against a later entry. This is, of course, a proper holding. The
prior settler's right is limited to the riparian land owned at the

\ time of a later appropriation, and cannot be increased by thereafter
buying more riparian land.^ This decides nothing as to the ex-

22 Crawford v. Hathaway, 67 Neb. "Here the plaintiffs have patents
325, 108 Am. St. Rep. 647, 93 N. W. which relate back to the certificates
781, 60 L. B. A. 889. (the contracts of the plaintiffs and

23 69 Gal. 255, 425, 10 Pae. 674. their assignors having been fully

24 At page 438. performed), so as to proteet them

25 Boyce v. Cupper, 37 Or. 256, 61 in their title to the lands, with all
Pac. 642. Lux v. Haggin says: their incidents. Assuming that the

9 307 USE CONFINED TO RIPARIAN LAND. 477

tent of riparian land at common law, but only enforces the rights
of the prior appropriator on public land against later entries of
the land. It held that the entry of new riparian land by Lux
could not thereafter affect Haggin's appropriation, but decided or
said nothing about Lux's right to use water on such new land as
against other riparian proprietors.^ For the court says in Lux
V. Haggin : ''This cause was not tried on the theory that defendant
was a riparian owner,'' adding that there was not even a pretense
of such claim by defendant.^*

The Kansas court, upon the same authorities as the NebrasKa
court, decided that the extent of riparian land as between riparian
proprietors is not controlled by government subdivisions.^ (^Nor

does the California court accept the rule that a governmental enl
try bounds riparian lands where the rights of appropriators in.
tervening between successive entries are not involved. Should it
be established that the irrigated area in the arid region should
be confined to lands adjoining the stream or within three-quarters
of a mile thereof, it would arrest further development, as most
lands bordering on the streams are not fairly well irrigated.

This test of governing riparian character by governmental en-
tries arose from a plain misunderstanding of Lux v. Haggin and is
indefensible on principle. It is not a common-law test at all, for
in most common-law jurisdictions governmental entries are un-
known.

§ 307. Same.— ^The California decisions, while not controlled
by governmental sub^visions, lean toward holding the extent of
riparian land to the smallest parcel touching the stream. in the
hislory of the title while in the hands of the present owner. JPur-
chase of contiguous land does not, thus, make it riparian, whether
of new land never before owned, or of land formerly part of the
same parcel severed by sale and then bought back. Thus, in Boeh-
mer v. Big Rock Irr, Dist. ^ it is said, **Mere contiguity cannot
extend a riparian right." This, of course, is unsound, if the
riparian right arises from access to The strtsam, since contiguity

rights of these parties are to he de- defendant's appropHation.* * Lux v.

termined hy the decision of the ques- Haggin, 69 Oal. 430.

tion, Did the plaintiffs acquire a right 26 See 69 Gal., at page 394.

to their lands before the defendant . 26a 69 Gal. 311.

appropriated the waters? the patents 27 Glark v. Allaman, 71 Kan. 206,

of the plaintiffs related to the cer- 80 Pac. 571, 70 L. R. A. 971.

tificates of purchase as against the 28 117 Gal. 27, 48 Pac. 908.

•

478 THE COMMON LAW OF RIPARIAN RIGHTS. 8 307

does not extend, but gives and founds the right. The court viewed
it as a question of extending the right of the originally owned
land to that newly bought, when, on the contrary^ the newly bought
land has an original right of its own just because of its acquir-
ing access or contiguity to the stream. The opinion also cited the

■

passage from Lux v. Haggin above quoted, and makes the same
mistake as to its meaning ; namely, the passage referred to priority
between successive entries by a riparian owner as against an in-
tervening appropriator, and had no reference to riparian owners
between themselves.

^ The same view is taken in a more recent case,^ saying that land
conveyed and severed from a stream can never again be regarded
as riparian, although it may thereafter be reconveyed to the per-
son who owns the part abutting on the stream so that the two
I tracts are again held in one ownership, citing again the passage
If rom Lux v. Haggin above referred to. The reconveyance in the
/case was made after the suit was brought, which probably dis-
tinguishes the case from the rule it lays down. Such a rule would
impede the settlement and irrigation of lands, enforcing a restric-
tion which may make it impossible ever to put the full capacity
of a stream to use where subdivision and sale and repurchase have
cut up the historical continuity of title of tracts, so as to leave
merely narrow strips alone riparian. Whether land is riparian
could never be told without an abstract of title. It would work
in restraint of alienation. It is not demanded^in reason, since the
riparian use must not be unreasonable in its character, whatever
the extent of the riparian land. ' 'If is not consistent with the views
expressed in the opinion in Alta etc. Co. v. Hancock,*^ where it
'is said that the riparian right extends **to each and every tract

[1280 acres in that case] held as an entirety, bordering upon the
stream, whatever its extent, '* subject to the restriction of rea-
sonable use with due regard to the use required by the other pro-
prietors. It is not consistent with the simple principle that the
riparian right arises out of access and extends, as concerns title,
to all land having access to the stream. It is founded on a
misinterpretation of Lux v. Haggin. It is emphatically rejected
in Oregon in the weH-considered case quoted at length in a suc-

20 Anaheim Water Co. v. Fuller, 30 85 Cal. 230, 20 Am. St. Rep. 217,

150 Oal. 327, 8 Pac. 978. 24 Pac. 645.

8 308

USE CONFINED TO RIPARIAN LAND.

479

ceeding section,'^ where the rule is laid down as set forth at the
beginning of this section; viz., that all land may, so far as title is
the test, be riparian, which is part of a tract in one ownership
abutting upon a stream and having access to it exclusively through
land of the same owner (subject, always, to the use thereon being
reasonable in degree).

As the same question arises in the civil law, a statement of the
civil law may be of some interest. The French law is: **To
solve the question what is contemplated by riparian land, one
must look to the state of things at the time the claim of use is
made. Consequently, when the proprietor of a riparian estate has
increased it by new acquisitions, or the owner of an estate sepa-
rated from the flow of a stream has acquired the intervening land
joining this estate with another one bordering on the stream, the
right to use the water may be claimed for all the parcels thus
united and forming a single whole. ''^

§ 308. Same — Within the Watershed. — Whether the riparian
land extends to all that contiguous tract in one ownership extend-
ing back from the stream, and having access to it, at the time of
use, or only to the smallest such tract in the history of the claim-
ant's title, in either case the tract may recede far from the stream,
and then a further restriction arises. While the boundary line
(however comp\ited) is the outside limit, it is not the sole test.'*
As the land recedes from the stream under the same ownership, it
IS a somewhat unsettled question when it ceases to be riparian in-
side of the above considered boundary line. There are two rules
held by different courts (which, for <;onvenience, we call the Cali-
fornia Rule and the Oregon Rule), viz.: (1) The California Rule,
that it ceases within his boundary at the top of the watershed. (2)

31 Jones V. Conn, 39 Or. 30, 87 Am.
St. Bep. 634, 64 Pac. 855, 65 Pac.
1068, 54 L. R. A. 630.

32 Droit Civile Francais, by Au-
brey & Ran, 4th ed., vol. Ill, p. 48:
("Pour resondre la question de ce
qu'il faut entendre par fonds
riverains, on doit s'attacher k
r^tat des lieux tel qu'il eziste
au moment ou est form^e la re-
clamation tendant k 1 'usage des
eaux. Ainsi, lorsque le. proprietaire
d'nn fdrds riverain I'a augments par
de nouvelles acquisitions, ou que le

proprietaire, d'un fonds s6par6 de
cours d'eau en op6r6 la jonction avec
un fonds qui y touche le droit k
I 'usage des eaux peut etre r^clam^
pour 1 'ensemble des heritages ainsi
r^unis et en seul.") Citing authori-
ties.

33 Bathgate v. Ir^'ine, 126 Cal. 135,
77 Am. St. Rep. 158, 58 Pac. 442;
Boehmer v. Big Rock etc. Co., 117
Cal. 19, 48 Pac. 908; Gould v.- Staf-
ford, 77 Cal. 66, 18 Pac. 879. See
Alta etc. Co. v. Hancock, 85 Cal. 219,
ilO Am. St. Rep. 217, 24 Pac". 645.

480

THE COMMON LAW OF RIPARIAN RIGHTS.

§ 308

The Oregon Rule, that it remains a question of fact in each case
depending upon the reasonableness of effect of use thereon upon
other proprietors.

The rule stated by the California court is that ripariaji land
istops with the watershed. Water used within a watershed surely
finds its way back to the stream.^ The court says:^ **The prin-
cipal reasons for the rule confiDing riparian rights to that part
of lands bordering on the stream which are within the watershed
are that where the water is used on such land it will, after such
use, return to the stream, so far as it is not consumed, and that,
. as the rainfall on such land feeds the stream, the land is, in con-
sequence, entitled, so to speak, to the use of its waters." Con-
sequently, under the California rule, land beyond a watershed,
though within the continuous boundary, is non-riparian.^ In the
recent case of Anaheim Water Co. v. Fuller*^'' the court says:
"Land which is not within the watershed of the river is not ripa-
rian thereto, and is not entitled as riparian land to the use or bene-
fit of the water from the river, although it may be a part of an
entire tract which may extend to the river." And in a still later
case says:^ ** Moreover, it is without dispute in the case, and so
declared upon the appeal in the 144 Cal. supra, that the lands
upon which the waters are derived are valueless for agricultural
purposes, and the waters are carried for use to cities, towns and
fertile lands beyond the watershed. A riparian proprietor's claim
to make such use of the waters of a stream is of course without
legal foundation."

The Kansas court accepted this same rule,^ saying : " In 3 Pam-
ham on Waters, 1903, it is said, *A11 conceptions of riparian land
lead to the conclusion that it is land which is tributary to and
lying along a watercourse, and as soon* as the ** divide" is passed
and the watershed of another stream is reached, the land cannot
be regarded as riparian with reference to the former stream, and

34 Monteeito etc. Co. v. Santa Bar-
bara, 14 Cal. 578, 77 Pac. 1113, per
llenshaw, J.

33 Anaheim etc. Co. v. Fuller, 150
Cal. 327, 88 Pac. 978.

36 Chauvet v. Hill, 93 Cal. 407, 28
Pac. 1066; Silver Creek etc. Co. v.
Hayes, 113 Cal. 142, 45 Pac. 191;
Wiggins V. Muscupiabe Water Co.,
113 Cal. 182, 54 Am. St. Bep. 337, 45
Pac. 160, 32 L. R. A. 667: Bathgate

V. Irvine, 126 Cal. 136, 77 Am. St.
Bep. 158, 58 Pac. 442; Southern Cal.
etc. Co. V. Wilshire, 144 Cal. 68, 77
Pac. 767; Pomona W. Co. v. San An-
tonio W. Co. {dictum), (Cal. Sup.,
Jan. 17, 1908), 93 Pac. 1881.

37 150 Cal. 327, 88 Pac. 978.

38 Monteeito etc. Co. v. Santa Bar-
bara, 151 Cal. 377, 90 Pac. 935.

39 Clark V. Allaman, 71 Kan. 206,
80 Pac. 571, 70 L. B. A. 971.

S 309 USE CONFINED TO RIPARIAN LAND. 481

since the right to water depends upon the land being riparian, the
destruction of the riparian character destroys the right to irrigate. '
Within these limits the principle of equality of right announced
above should control the use of water for irrigation purposes by
those whose land is affected by the presence of the stream irre-
spective of the incidental matter of governmental subdivision of the
land." . ••

In the case of Anaheim W. Co. v. Puller ^ a distinction was made
between the major watershed of a stream system, and the minor
watershed of any individual tributary. It was held that water-
sheds of branch streams must be considered separately from each
other and from the watershed below their junction. Water taken
in the watershed of a branch m;iist be used within the watershed of
that branch . It will not fulfill the rule for use within the water-
shed to use it within the watershed of the major stream system
if the surplus would not flow back to other owners on the branch
from which taken, but flow to the main stream through other
branches. Mr. Justice Shaw said: ** Where two streams unite,
we think the correct rule to be applied, in regard to the riparian
rights therein, is that each is to be considered as a separate stream,
with regard to lands abutting thereon above the junction, and that
land lying within the watershed of one stre^im above that point
is not to be considered as riparian to the other stream. The fact
that the streams are of different size, or that both lie in one general
watershed, or drainage basin, should not affect the rule, nor should
it be changed by the additional fact that the two watersheds are
separated merely by the summit or crown of a comparatively low
table-land, or mesa, as it is called in the evidence, and not by a
sharp or well-defined ridge, range of hiUs, or mountains. The
reasons for the rule are the same in either case."

§ 309. Bounded by Reasonableness in Each Case. — ^The Oregon
court in a well-considered case held that, within the outside limit
of the owner's last boundary line (and placed that line where his
contiguity to the stream stops, regardless of the history of his
title or subdivision of his tract into parcels acquired at different
.times) the rule as to the watershed as an inside limit is but one
of reasonableness depending upon the effect, under the evidence
in each case, of the use upon complaining proprietors, and not a

40 150 Gal. 327, 88 Pac. 978.
Water Rights — 81

482 THE COMMON LAW OF RIPAEIAN BIGHTS. S 309

hard-and-fast rule. Within the boundary of single abutting
ownership, what land the water may be used upon is held subordi-
nate to what i^ reasonable use in each case. All such land is con-
sidered riparian, but even riparian use must be reasonable, so that
the fixing of an inside limit is held not a question of what lands
are«nparian,*but of what use on even riparian lands is a reasonable
use. Consequently, under the Oregon rule, how far back from the
stream a continuous tract may be irrigated depends entirely upon
the question whether the use complained of is unreasonable, on
the proof, in its effect upon the use of the ^mplaining proprietor.
This is also undoubtedly the rule laid down in the California cases
of Alta etc. Co. v. Hancock^ and Chamock v. Higuerra,^

We qUote at length from this Oregon decision.^ The court says :
''But as we understand the law, lands bordering on a stream
are riparian, without regard to their extent. After a considerable
search, we are unable to find any rule determining when part of
an entire tract owned by one person ceases to be riparian." And
on rehearing: ^'The plaintiffs insist that the court erred in not
holding that the right of a riparian proprietor to use the waters
of a stream for irrigating purposes does not extend beyond the
watershed, or to lands not first segregated and sold by the gov-
ernment. This question was examined with great care before
the opinion was formulated. No authorities are cited or arguments
advanced in the petition for rehearing not then fully examined
and considered, and therefore the conclusion heretofore reached will
be adhered to. "

It is not clear, on the facts of the case, whether the land, though
over a low ridge, was or was not within the major watershed
of the stream; but under the recent California case cited above,
it would have made no difference in California. It would have
been held non-riparian in either case. The court discusses the
California decisions as follows :

''It would seem, therefore, that any person owning land which
abuts upon or through which a natural stream of water flows is a
riparian proprietor, entitled to the rights of such, without regard
to the extent of his land, or from whom or when he acquired

« 85 Cal. 219, 20 Am. St. Bep. 217, 43 Jones v. Conn, 39 Or. 30, 87 Am.

*42 m^i. 471, at 477 et aeq., 52 ®*- ^^' ^^^^ ^ ^*^- ^^5' ^ ^'^'
Am. St. Bep. 195, 44 Pac 171, 32 L. 1068, 54 L. B. A. 630.
B. A. 190.

5 309 USE CONFINED TO EIPABIAN LAND. 483

his title. The fact that he may have procured the particular tract
washed by the stream at one time, and subsequently purchased
land adjoining it, will not make him any the less a riparian pro-
prietor, nor should it alone be a valid objection to his using the
water on the land last acquired. The only thing necessary to en-
title him to the right of a riparian proprietor is to show that the
body of the land owned by him borders upon a stream. This being
established, the law gives to him certain rights in the water,
the extent of which is limited and controlled less by the area of
his land than by the volume of water and the effect of its use
upon the rights of other riparian proprietors. By virtue of the
ownership of land in proximity to the stream, he is entitled to a
reasonable use of the water, which is 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.'** In the deter-
mination of what will be considered such a use in a particular case,
the character and extent of the land, its location, and the time of
acquiring the title may all become, and are, no doubt, important
factors to be considered ; but they are not controlling, and each case
must depend entirely upon its own facts and circumstances . The
case of Boehmer v. Irrigation Dist.** would seem to make the extent
of riparian rights depend upon the source of title, rather than the
fact of title ; but in Water Co. v. Hancock ^ it was expressly held
that all land bordering upon a stream which is held by the same
title — in that instance consisting of 1,280 acres — is riparian, and
no distinction was made on account of the source of title. Again,
in Wiggins v. Water Co. *'' and Bathgate v. Irvine,*® the right of a
riparian proprietor to use the waters of a stream for irrigation
was limited to the watershed. But, as we understand these cases,
the court in each instance was determining the rights of the parties
then before it, and not attempting to lay down an inflexible rule
as a guide in all cases. Nothing more was held or decided than that
undeir the claim alone of riparian rights the owner of land
cannot, to the injury of another riparian proprietor, take the water
beyond the watershed, or onto lands held by a title different from

•

M Citing Kinney on Irrigation, sec. 47 Svpra,

276. « 126 Cal. 135, 77 Am. St. Rep.

« 117 CaL 19, 48 Pac. 908. 158, 58 Pac. 442.

M 85 Gal. 219, 20 Am. St. Bep. 217,
24 Pac. 645.

484 THE COMMON LAW OF RIPARIAN RIGHTS. S§ 310, 311

the title of those through which the stream flows ; and this all will
concede. The right to make a reasonable use of the water of a
stream is a right of property, depending on the ownership of the
latid abutting on or through which the stream flows ; and whether
a given use is reasonable or not is a question of fact to be deter-
mined under the circumstances of each particular case. The right
to use the water belongs to the owner of the land, and the extent
of its exercise is not to be determined by the area or contour of
his land, but by its effect upon other riparian proprietors.'*

This Oregon rule naturally follows from the doctrine of the
riparian right as one arising out of access, to take the water aa
a privilege belonging to the owner of all land having access to
the stream, 'where the taking does damage which is damnum absque
injuria if done in the reasonable riparian use of another proprie-
tor, or where the taking does no damage at all to the possibility of
use by complaining proprietors. The California watershed rule may
be regarded as based upon the same principle, and, as a matter
of practice, flxing a convenient rule of fact, drawn from ex-
perience of what is unreasonable in its effect, since water taken
beyond a watershed will not flow back to the stream and neces-
sarily excludes pro tanto all use thereof by others. The char-
acter of riparian land arises out of the fact of access to the stream
through the land ; the limitation to the watershed arises rather out '
of consideration of reasonable use by a riparian owner, even though
his land be riparian by virtue of his access through it.

§ 310. Non-riparian Use by Both Parties. — Aa between two
riparian proprietors neither seeking riparian use and both using
the water on non-riparian lands, the lower, it has been held", can-
not assert a riparian right.^ The matter is probably to be gov-
erned by the priaciple elsewhere set forth,^ that possession will
be protected against one who can show no better right.

§ 311. Ooncliudonfl as to Riparian Land.

(a) Water cannot be used on non-riparian land to the injury
of a riparian proprietor.

(b) To be riparian, land must touch the stream.

40 Vernon Irr. Co. v. Los Angeles, perior Court (Wash.), 39 Pac. 762, 90
106 Ch\. 243. Compare State v. Su- Pac. 653.

50 Sec. 267, also sec. 195, supra.

§ 311a USE CONFINED TO RIPARIAN LAND. 485

(c) The riparian character of the land as it recedes from the
stream stops when the continuity of ownership of the land is
broken, because the proprietors of all land beyond have no access
to the stream through such other land. Vice versa, all land is
riparian in title which at the time of use is one tract held in one
ownership abutting the stream.

(d) The extent of riparian land shifts with the boundary,
contracting with a sale of part, and expanding with a purchase of
contiguous land, since the right of access shifts correspondingly.
The decisions upon this conflict, however.

(e) If the boundary line is beyond a watershed, the riparian
character of the land stops at the summit of the watershed.

(/) Within the watershed the land must not be so distant that
use thereon will be unreasonable in its effect upon the possibility
of use of other riparian proprietors, under all the surrounding
circumstances, such as extent of area, time of acciuisition of land,
and the various other aspects of each case.

Shortly put, land to be riparian must at time of use be a con-
tinuous tract under one ownership (regardless of the history of
that ownership), touching the stream on one side and within the
watershed on the other, and such that use thereon will not unrea-
sonably interfere with the equally beneficial use of other pro-
prietors.

§ 311a. Indefiniteness of the Common Law.— It will be ob-
jected that the fourth rule, extending the riparian boundary
by purchase, leads to uncertainties, and leaves a man's right
to shift and vary from time to time, as new land is bought.
That is, perhaps, to some small extent a valid practical objection,
but is overdrawn in view of the fact that use on the new land
(though riparian) will be permitted only if the court (or jury)
is convinced that such enlarged use is not unreasonable. But even
if this were not tnie, the rule is nevertheless one .inherent in
any system governed by surrounding circumstances at the time
of each suit, whereby every suit as it arises comes down to the
discretion of court or jury, deciding what is reasonable in each
separate case. The rights of an irrigator at common law must of
necessity vary as the circumstances vary. The common law is

486 THE COMMON LAW OP RIPARIAN RIGHTS. S 311a

not a system of fixed rights at all (such as is the law of appro-
priation, in very protest against this), as has been said:^^

^'In ordinary controversies between parties claiming only as
riparian proprietors on the same stream of water, a judgment de-
termining that at a given time the parties are entitled to appro-
priate the waters in certain proportions is not necessarily conclusive
in a subsequent action; for the facts upon which rests the deter-
mination as to the proportion of the waters to which the parties

are entitled may be materially different at the second trial

In other words, where the parties claim merely as riparian pro-
prietors, the proportions to which they may respectively be en-
titled may vary from time to time, in accordance with the facts ex-
isting at the respective times."

Equality must depend on circumstances and the adjustment must
change when they change. An equalized distribution at one time
may become very unequal at a later point of time.

51 Los Angeles v. Baldwin, 53 Oal. 471. See, also, Williams t. Altnow (Dr.),
95 Pac. 200.

m-*^

S 312 PROTECTION OF THE RIGHT. 487

CHAPTER Vn.

PROTECTION OP THE RIGHT. /

A. DAMAGE AS AN ELEMENT OP WBONGFULNESS— BETWEEN

RIPARIAN PROPRIETORS.

§ 312. Introductory.

§ 313. Some showing of at least possible damage essential.

S 314. Same. ^

§ 315. Damage to a reasonable degree not wrongful.

9- 316. Damage in excess of reasonable degree.

S 317. Same — Where the damage is only prospective.

$318. Same— Declaratory decree.

B. BETWEEN A RIPARIAN AND NON-RIPARIAN OWNER.

S 319. Acts causing no present damage.

§ 320. Acts causing neither present nor prospective damage.

§ 320a. Same — Appropriation of surplus.

§ 321. Same — ^Damage implied by law.

S 322. Same — Storm waters.

9 323. Same.

S 324. Declaratory decree.

S 324a. Conclusions.

A. DAMAGE AS AN ELEMENT OP WRONGFULNESS— BETWEEN

RIPARIAN PROPRIETORS.

§ 312. In the matter discussed in the following sections the
authorities conflict greatly, and an attempt to state them presents
the greatest difficulty. The law has tried to realize the test given
by Justice Story: ''The law here, as in many other cases, acts
with reasonable reference to the public convenience and general
good, and is not betrayed' into narrow strictness subversive of
common sense, nor into an extravagant looseness which would
destroy private rights. ' ' ^ But there is much uncertainty and
conflict as to the rtiles by which this beneflcent middle course is
to be achieved. The earlier California cases aimed at fulfilling

1 Tyler t. Wilkinson, 4 Mason, 397, Fed. Cas. No. 14,312.

488 THE COMMON LAW OF RIPARIAN RIGHTS. §§ 313, 314

the first part of this test, while the later accuse the earlier ones of
falling within the last part of this admonition.

We discuss the matter first solely as between two contesting
riparian proprietors, without regard to non-riparian owners.

§ 313. Some Showing of at Least Possible Damage is EssentiaL

'The riparian proprietor does not make a prima facie case against
anoth\Br riparian proprietor where the former does not ahowany
possibility of damage of any. Jdnd. It was once insisted that the
stream must remain in its natural state undisturbed, and that any
abstraction or diversion by one proprietor was wrongful to all
below him. As to this it is said in Kent's Commentaries, in a well-
known passage:^ '^Streams of water are intended for the use and
comfort of man; and it would be unreasonable and contrary to
the general sense of mankind, to debar any riparian proprietor
from the application of water for domestic, agricultural or manu-
facturing purposes, provided the use of water be made under the
limitation that he do no material injury to his neighbor below him,
who has an equal right to the subsequent use of the same water . ' '
In Lux V. Haggin* this is commented upon as follows: "It
seems to us that the foregoing (although a very distinct statement
of the general proposition) ought not to be taken literally, unless
the words 'material injury* be impressed with a signification the
equivalent of a substantial deprivation of capacity in a lower
proprietor to employ the water for useful purposes. '* And this
passage in Kent is restated by the supreme court of the United
States^ further saying: "No one can set up a claim to an exclu-
sive flow of all the water in its natural state, and that what he
may not wish to use shall flow on till lost in the ocean." Justice
Story said : "The true test of the principle and extent of the use is,
whether it is to the injury of the other proprietors or not." ^

§ 314. Same. — ^If it were not thus true that the complaining
proprietor must show at least a possibility of damage when con-
testing with another riparian proprietor, there would be absurd
results, a reductio ad absurdum first suggested by Chief Justice
Shaw of Massachusetts : * * * The instruction requested by the plain-

2 3 Kent's Commentaries, 429. 3 Tyler v. Winkinson, 4 Masoii.

^*^"S nT'oKK im> an A 397, Fed. Cas. No. 14,312.

3 69 Cal. 255, 10 Pac. 674. J „„. ^^ ^.^ ,_,. ,» ,/v i^ ,.

4 Howard v. Ingersoll, 13 How. * Elliott v. Fitchburg By., 10 Cush.

381, 14 L. ed. 189. (Mass.) 191, 57 Am. Dec. 85.

§315 PROTECTION OF THE RIGHT. 489

tiff, is, we think, founded on a misconception of the rights of
riparian proprietors in watercourses passing through or by their
lands. It presupposes that the diversion of any portion of the
water of a running stream, without regard to the fitness of the pur-
pose, is a violation of the right of every proprietor of land lying
below on the same stream, so that, without suffering any actual
or perceptible damage, he may have an action for the sole pur-
pose of vindicating his legal right." If this were true, the learned
judge concludes, and a riparian proprietor could have such an
action, **then every proprietor on the brook to its outlet in Nashua
River would have the same; and because the quantity of diminu-
tion is not material, every riparian proprietor on the Nashua
would have the same right, and so every proprietor on the Merrimac
River to the ocean. This is a sort of reductio ad absurdum which
shows that such cannot be the rule as was claimed by the plain-
tiff." In another leading case it is said: **This right to the bene-
fit and advantage of the water flowing past his land is not an ab-
solute and exclusive right to the flow of all the water in its nat-
ural state. If it were, the argument of the learned counsel that
every abstraction of it would give a cause of action would be
irrefragable; but it is a right only to flow of the water, and the
enjoyment of it, subject to the similar rights of all the proprie-
tors of the bank on each side to the reasonable enjoyment of the
same gift of. Providence. It is only, therefore, for an unreason-
able and unauthorized use of the common benefit that an action
will lie; for such a use it will." ^

Streams flow for the benefit of all persons who have land ad-
joining, and not simply for those persons only whose lands lie
at the mouth of the stream.

§ 315. Damage to a Reasonable Degree not Wrongful.^Any

diversion or use by one proprietor muy cause damage to a neigh-
bor as just set forth. To a reasonable degree, it is a good defense
to the proprietor complained of that he was acting in the use of
his own riparian land. **It is a general rule — in fact, a universal
principle of law — ^that one may make reasonable use of his own
property, although such use* results in injury to another,"® and
this is but one application of that rule. As discussed in a pre-

7 Embrey v. Owen, 6 Ex. 352.

8 Katz V. Walkinshaw, ]41 Cal. 143.

490 THE COMMON LAW OF BIPARIAN BIGHTS. S§ 316, 317

ceding chapter, what is a reasonable use by one proprietor to which
another must submit, though it interferes with the use sought to
be made by such other, is a question of fact depending upon the
circumstances in each case, and the authorities have there been
given at length.

Under the doctrine of appropriation the right, being founded
on priority, is exclusive to the extent of the priority, and any
material interference with the prior use is wrongful. But under
the law of riparian rights no proprietor has an exclusive right
against the other proprietors, and no use by another proprietor
is wrongful unless it unreasonably exceeds the equality of right
among all; in the absence of such excess any damage is dam7ium
absque injuria. The fact that one proprietor's use or possibility
of use is interfered with by another is not alone a wrong to him;

it must be sudb interference as is in excess of the equal right of
the proprietor complained of. ''Each must submit to that de-
gree of inconvenience and hardship in the exercise of his rights
which results from the existence of like rights in others.'***

§ 316. Damage in Excess of Eeasonable Degree. — We have, in
a preceding chapter, quoted from authorities holding that it is
all a question of degree, what act of one proprietor is a wrong to
another, that unreasonable degree being a question of fact in each
case. Such excessive damage is wrongful . This rule is laid down
in a recent California case: ''Riparian owners have correlative
rights in the stream, and neither is a trespasser against the other
until he diverts more than his share, and injures and damages the

' other thereby The rights in such cases are correlative, and

if an injunction can issue at all therein, it can be only when one
owner takes more than his due proportion, and damage to the other

' ensues from such excessive taking."^

§ 317. Same— Where the Damage is Only Prospective.— If the

taking or use complained of is in excess of the share and due pro-
portion which the proprietor, under the principle of equality, is
entitled to take or use, then, conversely, he is taking the share be-
longing to other proprietors, and the damage to them may be ex-
cessive so far as it is a substantial deprivation of capacity to make

8a Parker v. American etc. Ck). » Anaheim W. Co. v. FuUer, 150

(Mass.), 81 N. £. 468. Cal. 327. Italics ours.

§ 318 PEOTECTION OF THE RIG^T. 491

future use, though no actual damage exist at present. 4^n exces- \
sive injury to capacity of use in the future, which would ripen/
into a prescriptive right, is equally a wrong. For example; if one
riparian proprietor uses the whole stream, though on his own ripa-
rian land, it is wrongful to a lower proprietor, though the lower
proprietor makes no use of the water himself; for in a few yeai»
he would finally lose the whole stream by prescription.^^ Besides
which the upper owner by so doing immediately deprives, the lower
of the natural benefit and fertility which the flow of the stream
naturally aflfords.^^

§ 318. Same — ^Declaratory Decree. — While prospective damage
is thus equally important with present damage in determining what
acts complained of are excessivejlliei^ is a tendency to protect such
future use (where no present use is made, and hence no actual
present damage) by a declaratory decree, protecting the complain-
ing proprietor's right of future use, but refusing a prohibitive
injunction during his present non-usel This is in effect quieting
his title to his right of future use, but denying a prohibitive in-
junction at present because no actual damage occurs to his use
at present, and allowing excessive use by the other proprietors
during the absence of damage and during the non-use of the com-
plaining party.

In one case,^^ a riparian proprietor filed a bill to enjoin the di-
version of water from the stream by an upper riparian proprie-
tor, a water company, for the use of its waterworks constructed to
supply the inhabitants of a city with water. The testimony in
the case established that the diversion of water for the purpose
mentioned would result in a sensible diminution in the flow of the
stream itself in the dry season or summer months, but that the
complainant was making no particular use of the stream, and
therefore suffered no special damage by the act of the defendant ;
and it was held that; as the defendant was taking the water for the
purpose of suppl3ing the wants of a neighboring town, and not
returning it to its natural channel, the plaintiff was entitled to an
injunction in vindication of his rights, without any special proof

10 See Mason v. HiU, 5 Barn. & n Ibid, See infra, Non-nse, where

Adol. 1; EUiott v. Fitchburg By., 10 the authoritieB are cited.

Gush. (Mass.) 191; Gonld on Waters, 12 Ulbrieht t. Eufaula Water Co.,

3d ed., p. 422, note 4, citing many 86 Ala. 687, 11 Am. St. Bep. 72, 6

cases. South. 78, 4 L. B. A. 572.

492 THE COMMON LAW OP RIPARIAN RIGHTS. S 319

of damages ; but, as he was not making any particular use of the
water, the' in junction should be so framed as only to restrain its
use **to the sensible injury or damage of the complainant for any
purpose for which he may now or in the future have use for it."
And in the Oregon ease of Jones v . Conn,^' it was held that where
plaintiffs, who were lower riparian owners, sought to restrain de-
fendant's use of the water of a stream for irrigating purposes, on
the ground that the land irrigated was non-riparian, and defend-
ant set up in his answer an absolute right to a sufficient amount
of water to irrigate his land, plaintiffs, though not entitled to an
injunction, should be awarded a decree limiting defendant's use
to such as' would not materially injure plaintiffs, in order to prevent
defendant's right from ripening into an adverse title; but permit-
ting defendant's use until such injury should arise. In Katz v.
Walkinshaw^* Judge Shaw states the same principle, applying it
to percolating water: **If a party makes no use of the water on
his own land or elsewhere, he should not be allowed to enjoin its
use by another who draws it out, or intercepts it, or to whom it
may go by percolation, although, perhaps, he may have the right to
a decree settling his right to use it when necessary on his own land,
if a proper case is made." *^ In Wiggins v. Muscupiabe etc. Co.*®
it was decreed (by Judge Shaw, trial judge, now on the supreme
bench) that when one proprietor was not using the water it might
be all used by the other ; decreeing to the former a right, whenever
he desires, to use it for all his irrigable land at the times decreed
by the court as reasonable, but allowing use by the other in the
meantime. The decree was affirmed on appeal.

B. DAMAGE AS AN ELEMENT OF WRONGFULNESS— AS BETWEEN
A RIPARIAN AND A NON-RIPARIAN OWNER.

. § 319. Acts Causing No Present Damage. — Since the riparian
proprietor 's right is not created by use, but arises out of access, and
he may use the water when he will, the absence of actual damage at

13 39 Or. 30, 87 Am. St. Rep. 634, Co., Cal. Sup., dow on appeal. An
64 Pac. 855, 65 Pac. 1068, 54 L. R. order in this case entered February
A. 630. 17, 1908, reserved thid point for de-

14 141 Oal. 116, 99 Am. St. Rep. 35, vision in bank as not decided in Katz
70 Pac. 663, 74 Pac. 766, 64 L. R. A. v. Walkinshaw.

23ft. 10 113 Cal. 194, 54 Am. St. Rep.

iR See, also. Burr v. Maclay W. 337, 45 Pac. 160, 32 L. R. A. 667.

9 319

PROTECTION OF THE BIGHT.

493

the time he complains does not prevent the act of the non-riparian
owner being wrongful; even, in fact, when the complaining
proprietor is not himself using, nor contemplating to use, the
water at all.^^ The courts will act at law by giving nominal dam-
agesj^^'or in equity by injunction, to vindicate his right of future
use, which right is part and parcel of the land, and prevent its
loss by prescription, and which future use is (in marked contrast
to the law of appropriation) as secure to him as any present use.^^
In a recent California case it is said: ^® ** Finding 15, to the effect
that a large part of each of the tracts described in the complaint
has for twenty-five years been continuously cultivated by means
of water taken from the stream is, it is contended, contrary to
the evidence. The finding on this point is, so far as concerns the
plaintiffs who have riparian rights, not material. Their right to
restrain the diversion, by others than riparian owners, of water
which would, if undisturbed, flow past their lands, does not rest
upon the extent to which they have used the water, nor upon the
injury which might be done to their present use. Even if these
plaintiffs had never made any use of the water flowing past their
land, they had the right to have it continue in its customary flow,
subject to such diminution as might result from reasonable use
by other riparian proprietors. This is a right of property, a *part
and parcel' of the land itself, and plaintiffs are entitled to have
restrained any act which would infringe upon this right. ' '

The riparian right is part and parcel of the riparian land, not
depending upon actual use, as contrasted with an appropriation
which depends on beneficial use .

Upon this rule, that actual present damage to a riparian owner •
is not necessary to make a non-riparian owner's diversion wrong- ..
ful, the authorities are emphatic.

17 The anthorities to this effect are
cited below, section 335, in consider-
ing ''non-use."

17a Creighton v. Evans, 53 Cal. 55.

18 Anaheim etc. Co. v. Semi-Tropic
etc. Co., 64 Cal. 185, 30 Pac. 623;
Stanford v. Felt, 71 Cal. 249, 16 Pac.
900; Heilbron v. Land Co., 80 Cal.
189, 22 Pac. 62 ; Last Chance etc. Co.
V. Heilbron, 86 Cal. 1, 26 P&c. 523;
Gould V. Eaton, 117 Cal. 539, 49 Pac.
577, 38 L. R. A. 181 ; Bathgate v. Irv.
ine, 126 Cal. 136, 77 Am. St. Rep.
158, 58 Pac. 442; Southern Cal. etc.
Co. V. Wilshire, 144 Cal. 73, 77 Pac.

767; Anaheim W. Co. v. Fuller, 150
Cal. 327, 88 i'ac. 978; Duckworth v.
WatsonviUe Co., 150 Cal. 520, 89 Pac.
338; Huffner v. Sawday, Cal. Sup.,
Feb. 18, 1908; Benton v. Johncoz, 17
Wash. 277, 61 Am. St. Rep. 912, 49
Pac. 495, 39 L. R. A. 107; and cases
cited supra^ sec. 22. The leading
American case is that of Justice Story
in Webb v. Portland Cement Cto., 3
Sum. 189, Fed. Cas. No. 17,322. The
leading English case is Swindon W.
W. V. Wilts etc. Co., 7 H. of L. 697.
i» Huffner v. Sawday (Cal. Sup.),
94 Pac. 24. Italics ours.

494 THE COMMON LAW OF RIPARIAN RIGHTS. § 320

§ 320. Acts OaoBing Neither Present nor Prospective Damage.

Though the authorities are unanimous that the riparian proprietor
need show no actual present damage against a non-riparian owner,
yet they are in greatest conflict whether he need show a possible
prospective damage in the absence of present damage. For illus-
tration, the case of a riparian proprietor whose land is worthless
for irrigation (suppose an alkali flat owned by him), as against a
non-riparian owner irrigating from the stream ; also the case of a
small ten-acre farm at the mouth of a large stream and a non-
riparian diversion leaving all the water the ten-acre farm could
ever possibly use.

If the right of the riparian proprietor is viewed simply as a
usufruct, his right is one not to be damaged in his use, present or
prospective, to an unreasonable degree by another riparian pro-
prietor j — ^to any degree at all by a non-riparian proprietor. But
a possible damage to the complaining riparian proprietor's use at
some time or other — ^in the future if not now — ^would seem essential
to put the non-riparian proprietor in the wrong.

There is much authority to this effect, and much authority to
the contrary. The leading authority to this effect is the judg-
ment of Chief Justice Shaw in the Massachusetts case of Elliott
V; Pitchburg Ry.^*» In that case the defendant was a non-ripa-
rian proprietor who put a dam in the stream and piped water
away to non-riparian lands. The plaintiff riparian proprietor re-
quested the following instruction: '*If the jury were satisfied
of the existence of ,the brook, as alleged, and the diversion of the
water therefrom by the defendants, he was entitled to a verdict
for nominal damages, without proof of actual damage." But
the Chief Justice, whom Lux v. Haggin in quoting from and ap-
proving this case calls ''the same learned judge and luminous

■

writer, "^®^ held that the instruction requested is founded on a
misconception of the rights of riparian proprietors, and that plain-
tiff has no cause of action until he proves that he may in some
way at some time be damaged by the taking. We refer to a pre-
vious section where we have quoted to this effect from the opin-
ion.^®<» The writer understands that this holding has been gen-
erally followed in America, and is generally known as the Amer-
ican Rule. ^

19ft 10 CiiBh. (Masfl.) 193, 57 Am. lOb Lm y. Haggin, 69 Cal. 255 at

Dec. 85. 402.

i»c Supra, sec. 287.

§ 320

PROTECTION OF THE BIGHT.

495

Perhaps the Western case most frequently referred to for
this holding is Modoe L. & L. Co. v. Booth,^ wherein it is
said: ''It seems clear, however, that in no case should a riparian
owner be permitted to demand as of right the interference of a
court of equity to restrain all persons who are not riparian owners
from diverting any water from the stream at points above him
simply because he wishes to see the stream flow by or through his
land undiminished or unobstructed. In other words, a riparian
owner ought not to be permitted to invoke the power of a court
of equity to restrain the diversion of water above him by a non-
riparian owner when the amount diverted would not be used by
him, and would cause no loss or injury to him or his land, present
or prospective, but would greatly benefit the party diverting it."
This was relied on in Vernon Irr. Co. v ; Los Angeles,^ where it is
said: ''There is no evidence or finding that its lands are suscep-
tible of cultivation or can be made productive, ot that plaintiff
is or can he injured as to its riparian lands though deprived of all
the^ water flowing in the stream." (Injunction refused). Ac-
cording to this view, injunction against non-riparian use by a
non-riparian proprietor has been refused on the ground that the
complaining riparian proprietor showed no possibility of damage/
present or prospective , to his own. use of the water.^

If this were not true, it has been said, the same absurdity would
result as that set forth by one of the greatest of American judges
quoted in a preceding section,^* which he was actually apply-
ing to a ease where the defendant, a non-riparian owner, used
the water on non-riparian land. This same reductio ad absurdum
was used in the Modoc case, supra: "If this be not so, it would
follow, for example, that an owner of land bordering on the Sacra-

20 102 Cal. 151, 36 Pac. 431.

21 106 Cal. 243, 39 Pac. 762.

22 Jones V. Conn, 39 Or. 30, 87 Am.
St. Bep. 634, 65 Pac. 108, 54 L. B.
A. 630; GilliB v. Chase, 67 N. H. 161,
68 Am. St. Bep. 645, 31 Atl. 18;
Elliott T. Htchburg By., gupra. See,
also, Meng v. Coffey, 67 Neb. 500,
108 Am. St. Bep. 697, 93 N. W. 713 ;
Clark V. Allaman, 71 Kan. 206, 80
Pac. 571, 70 L. B. A. 971; Crnse v.
McCauley (Mont.), 96 Fed. 369; Mc-
Cook Irr. Co. v. Crews (Neb.), 102 N.
W. 249; dine v. Stock (Neb.), 102

N. W. 265. The storm water cases
below considered are really based on
this principle. In a Nebraska case
(Crawford Co. v. Hathaway, supra)
it is said of a contest between a ripa-
rian and a non-riparian owner: ''Hall
was entitled to an injunction restrain-
ing any unreasonable diversion of the
water which produced a subsiaiUial
injury to him. But he could not in-
sist that the slightest sensible diminu-
tion in the volume of the water be
stopped merely as such.'/ Hall being
the riparian proprietor.
22a Supra, sec. 314.

496 THE COMMON LAW OF RIPARIAN RIGHTS. § 320a

mento River in Yolo County could demand an injunction restrain-
ing the diversion of any water from that river for use in irrigating
non-riparian lands in Glenn or Colusa County. And yet no one,
probably, would expect such an injunction, if asked for, to be
granted, or, if granted, to be sustained." And in another case:
'^ A riparian owner on the Mississippi River might seek to enjoin the
diversion of the waters of Sage Creek in Wyoming because they
eventually reach the Missouri River, and finally through that river
flow into the Mississippi. This argument might be classed under
the head of reductio ad dbsurdum, which sometimes is very effective
as illustrating results which may flow from doing a given thing." ^
Regarding this expression in the Modoc case, however, Mr. Justice
McFarland in the Vernon case,^* concurring specially, said: ** Illus-
trations drawn from supposed riparian rights in such rivers [the
Mississippi or Sacramento] are scarcely more pertinent than would
be illustrations from supposed riparian rights on the Gulf Stream, ' '
which is quoted with approval in the Federal court,^ and seems
to have the approval of the recent decisions of the California su-
preme court,^ which recently said that the Modoc case must be
disregarded unless it can stand on the storm water principle be-
low considered.^ But the Modoc case has been expressly ap-
proved in Nebraska.^

It has been suggested that the Modoc case laid down only a rule
of irreparable damage for injunction — a principle of equity and
not of substantive law . But the Elliot case was a case at law, and
no such distinction is taken in any cases upon the point| hereafter
stated.

So far as the recent cases upon percolating water present an-
alogies to riparian rights on watercourses, they strongly support
flthe rule of the Modoc case that at least a possible prospective
I damage to his own use must be shown by the complaining pro-
prietor before a diversion for distant use is wrongful.^

§ 320a. Same — ^Appropriation of Surplus.— There are deci-
sions going further than the Modoc case in support of ap-

28 Morris v. Beam (Mont.), 146 27 Anaheim W. Co. v. PuUer, supra.

Fed. 425. See, also, Kansas- v. Colo- 28 See cases cited supra,

rado, 206 IT. S. 46, 51 L. ed. 956. 29 Newport v. Temescal W. Co., 149

24 106 Cal. 237, supra, Cal. 531, 87 Pac. 372; Cohen v. La

25 Cal. etc. Co. v. Enterprise etc. Canada W. Co. (second appeal), 151
Co., 127 Fed. 241. Cal. 680, 91 Pac. 584; and Mr. Jus-

26 Anaheim W. Co. v. Fuller and tice Shaw in Katz v. Walkinshaw,
Huffner.v. Sawday, supra, quoted infra, sec. 364.

§ 320a PBOTECriON OP THE EIGHT. 497

propriatioD against a riparian proprietor, especially two Cali-
fornia cases. A riparian proprietor has been held in Califor-
nia to have a right against a subsequent appropriator only to
the extent of the amount necessary for use on the riparian land.^*
In Senior v. Anderson,^^ an appropriation was made against a
riparian owner, and was upheld as to the surplus over the quantity
that could be beneficially used by the riparian owner. The court
said: **It is contended by respondents that Senior acquired no
rights by his notice and the actual diversion of the w^^^^ ^^ Octo-
ber, 1887; that riparian rights had before that attached to the
lands of Mrs. Hines, she having proved up and claimed her final
certificate of purchase. There is no merit in this contention. Her
riparian rights could only entitle her to a reasonable use of the
water upon her riparian lands, but having before she acquired
title from the United States appropriated more water than was
required for beneficial uses upon said land, she could acquire no
right to any additional quantity under the law of riparian rights."
(Under the more recent decisions she would have been entitled to
the entire flow, irrespective of possible use.)

Another case has gone even further. In Riverside W. Co. v.
Gage^° it was held that a riparian owner must, in a suit with the
appropriator, actually allege in his pleading the facts showing the
quantity necessary for' his riparian use, beyond which the surplus
may be appropriated; the burden of disproving a surplus was
strongly placed upon the riparian owner. The court said: **But in
addition to the appropriations upon which the defendant seems
mainly to have relied, he did allege in his answer that he was the
owner of a tract of land containing about twenty-six hundred acres,
through and over which the Santa Ana River flowed for a distance
of about three miles, and that most of the tract was susceptible of,
and would be benefited by, irrigation. He did not, however, allege
that he was entitled as a riparian owner to any definite quantity of
water for the irrigation of his riparian lands, nor did he allege any
facts. showing, or tending to show, what proportion of the waters
of the stream he could reasonably exhaust for that purpose. Nor is
it alleged whether his land was above or below the point of plain-

2»ft Senior v. Anderson, 130 Cal. tice in Baxter v. Gilbert, 125 Oal.

290; Biveraide ete. Go. v. Gage, 89 580.

Cal. 420, Beatty, C. J. See, also, the 29b 130 Cal. 290, at 296.

dissenting opinion of the Chief Jns- 2^ 89 Cal. 410, 420.

Wftter Rights — 82

498 THE COMMON LAW OF RIPABIAN RIGHTS., S 321

tiflf's diversion. In short, we think the answer insufficient to
raise any issue as to the extent of defendant's right as a mere
riparian proprietor to divert and exhaust any portion of the
stream." His opponent here relied solely on rights of appropria-
tion ; and the more recent decisions would have made the extent of
riparian needs immaterial, excepting that two very recent cases have
again laid down and approved the rule of the Riverside case.^**

These earlier cases looked solely to the possible uses of the
contesting proprietor,, while the later cases seem to look to the
rights of all riparian owners on the stream collectively sufficient
to exhaust it, though not collectively represented in the suit, as
below adverted to.

In support of the Modoc case, a decision of the supreme court
of the United States may, perhaps, be cited, holding, in a New
Mexico case, that a statute allowing appropriations of surplus water
cannot result in infringement of riparian rights even if such rights
exist in New Mexico, because the statute expressly limits the ap-
propriation to *' surplus" water.^ In Oregon an appropriation
over the possible uses of the riparian proprietor has been allowed,^^
and in Washington a subsequent appropriator has been allowed to
enjoin acts of a prior riparian owner .^^ In South Dakota a sub-
sequent appropriation has been upheld against a riparian owner,
after fixing by decree the amount of one hundred inches as the
amount necessary for the riparian land,^ though this case goes
further than the Modoc case, in that it measured the riparian
owner's right by his present needs alone (while the Modoc case
would protect as well all possible prospective increase of use).

§ 321. Same— Damage Implied by Law. — ^In opposition to the
cases just given there is a strong line of decisions holding that, as
against a non-riparian owner, neither actual present damage nor
even a possible prospective damage to use need be shown; that,
regardless of any possible use or damage shown by the riparian

»d Montecito Co. v. Santa Bar- See, also, AnderBon v. Bassinaii, 140
bara (second appeal), Gal. Sup., 90 p^^ ^4

L'S-^^ir*t Co^™: pTg„e!''5\' p " Boyce v. Cupper. 37 Or. 256. 61

C^l. 112. See likewise San Luis W. ™- ™' ^ ^ ' . ^

Co. V. Estrada, 117 Cal. 182. ^ Northport Brewing Co. v. Perrat,

80 Gutierres v. Albuquerque etc. Co., 22 Wash. 243, 60 Pac. 403.
188 IT. S. 545, 47 L. ed. 588, 23 Sup. 88 Lone Tree D. Co. v. Cyelon^ D.

Ct. Bep. 338, quoted supra, p. 88. Co., 16 S. Dak. 519, 91 N. W. 355.

9 321

PROTECTION OF THE RIGHT.

499

owner, a non-riparian owner is a trespasser upon the riparian pro-
prietor's right (as distinguished from his use) from the beginning,
and a continued violation of his right would in time devest the
riparian owner thereof by prescription. This is the present rule
of the California supreme court.** The writer understands this
to be generally known as the English Rule*** in contrast to the
American Rule established by the Elliott case.

For this holding there appear to be two distinct grounds taken
by different cases. In the Heilbron cases it was rested on the
. ground that **the flow of water of a stream, whether it overflow
its banks or not, naturally irrigates and moistens the ground to
a great extent, and thus stimulates vegetation, and the growth and
decay of vegetation add not only to the fertility, but to the sub-
stance and quantity of the soil," and a non-riparian diversion is

34 Stanford v. Felt, 71 Cal. 249;
Keilbron v. Water Co., 75 Cal. 117;
Heilbron v. Fowler 8. C. Co., 75 Cal.
426; Conkling v. Pac. Imp. Co., 87
Cal. 296; Spargiar v. Heard, 90 Cal.
228; Mott v. Bwing, 90 Cal. 237;
Gould V. Eaton, 117 Cal. 543; Bath-
gate V. Irvine, 126 Cal. 135, 141;
Southern Cal. Co. v. Wilshire, 144 Cal.
73; Anaheim W. Co. v. Fuller, 150
Cal. 327; Duckworth v. Watsonville
W. Co., 150 Cal. 520; Huffner v.
Sawday (Cal. Sup.), 94 Pac. 424.
Two earlier causes usually cited to
this effect, Moore v. Clear Lake Water
Co., 68 Cal. 146, and Walker v. Em-
erson, 89 Cal. 456, appear to have been
decided under the law of appropria-
tion, and not that of riparian rights.

34a In Kensit v. Great Eastern
Railway, [1884] 27 Ch. D. 122, Lind-
ley, L. J., said: ''It is said that a
man who is not a riparian proprietor
has no right to take water from a
stream at all, and if I, a riparian
proprietor, find anybody who is not
a riparian proprietor taking water
from the stream, although I am not
damnified, I can maintain an action
for an injunction. Now, this is a
very startling proposition, and one
would like to see some authority for
it. It goes to an extent which is
bordering on the absurd. According
to that, if I am a riparian proprie-
tor near the mouth of the Mississippi,
and somebody a thousand miles up

diverts the water, although not to my
detriment, I can sustain an injunction.
That is ridiculous The argu-
ment cannot be maintained unless we
say that a riparian proprietor cannot
allow anybody to take any water out
of a stream whether anybody is in-
jured or not. It seems to me it would
be monstrous to decide anything of
the sort.V The injunction was re-
fused. Cotton, L. J., saying: ''Tf
there was a reasonable prospect that
it would produce any damage to the
opposite or lower riparian owners,
then that would give a right of action,
although no actual injury was shown
to have resulted from it. ' ' But deny-
ing injunction because the diversion
in the case 1^ a non-riparian owner
could not in any way produce any in-
jury or loss to plaintiffs, present or
future, and no prescription would
arise. The later case of McCartney
V. Londonderry Ry., [1904] App. Cas.
301, is usually considered inconsistent
with this case and as representing the
present English rule, though Lindley,
L. J., took part in the later decision
also and considered the facts dis-
tinguishable on the ground that an
actual prospective damage was shown
to be possible in the later case. The
later case also suggested that there
may be a distinction in this connec-
tion between the rule at law and in
equity.

500 THE COMMON LAW OF RIPARIAN RIGHTS. S 321

thus per se a great damage, regardless of any other showing. This
is, indeed, an actual damage, however, rather than dispensing with
all damage. Yet, in view of the recent cases on percolating water
it mi^ht be answered that the fact of such damage may now be
put upon proof instead of being assumed. Certainly it wiU not
exist invariably in all cases, for in alkali regions streams are seen
which cut a trough through the alkali land without the slightest
sign of any vegetation on its banks or at all, except sagebrush.
Certainly there may be streams flowing over granite or other im-
pervious rocks, or at the bottom of deep canyons, which cannot
possibly sub-irrigate the neighboring land.. Damage from loss of
natural sub-irrigation was examined into, in a recent case of per-
colating water, as a question of fact, and held not to exist in fact.
It was regarded as a question of fact to be proved in the ordinary
way, and not assumed.^ If treated as a question of fact, cases
might appear wherein, even if proved at all, it might be shown so
slight as to be within the rule de minimis. However, it is un-
doubtedly one ground for holding that proof of diversion by a
non-riparian owner is proof of a wrong to a riparian owner without
inquiry into even possibility of damage to the riparian owner's
present or future use.

The other ground that appears in the decisions is the doctrine
of '^injuria sine damno'^; that, as against a non-riparian owner,
the riparian proprietor has a right to the entire flow (regardless
of possible use or damage to future use), and any injury to the flow
caused by a non-riparian proprietor is a wrong per se which in
time would devest the riparian right by prescription. The first
case in the California reports applying this doctrine to streams
was Moore v. Clear Lake Water Company,^ which is cited in. all
the subsequent cases, though it appears not to have been decided
under the law of riparian rights but under the law of appropria-
tion.

It has been suggested that in applying the doctrine of ''injuria
sine damno" it is first necessary to inquire what is the nature of
the right, before concluding that an invasion exists at all, or that
a prescriptive right would arise. As is said in one of the leading
cases in the law of waters, **We by no means dispute the truth
of this proposition with respect to every description of right. Ac-

35 Newport v. Temeseal W. Co., 149 36 68 Cal. 146.

Cal. 531, 87 Pac. 372.

§ 321 PROTECTION OF THE RIGHT. 501

tual perceptible damage is not indispensable as the foundation of
an action ; it is sufBcient to show the violation of a right, in which
case the law will presume damage; injuria sine damno is action-
able But in applying this admitted rule to the case of rights

in running water, and the analogous cases of rights to air and light,
it must be considered what the nature of those rights is, and what
is a violation of them."*^ This rfuthority then proceeds to show
that the nature of the riparian right is primarily one of use (a
usufruct) in a passage we quoted in a preceding chapter.^ The
rule of injuria sine damno unquestionably applies without regard
to actual damage to present use.*®* But in applying the rule
of injuria sine damno without regard to even prospective dam-
age to use, perhaps the foregoing decisions illustrate the result
of regarding the right of the riparian proprietor as one to the
stream itself as a corpus of the freehold, under the ^^cujus est
solum'' doctrine, instead of as a usufruct — a matter concerning
which we refer the reader to a previous chapter »

Possibly, also, these recent decisions are influenced by the view
that all riparian proprietors, taken collectively, may (and, on small
streams, usually will) have rights of use which would exhaust the
entire stream if exercised, so that any diversion by a non-riparian
owner would ipso facto result in at least a prospective damage
to the complaining proprietor. On very large streams that might
not be true; but even on small streams that proceeds upon the
rights of all riparian proprietors considered collectively against
the appropriator; and yet it is certain that they are not collectively
represented in the suit itself. All but the individual complain-
ing proprietor are strangers to the suit, unless actually brought
into court by proper process; and the argument, considering the
rights of all the proprietors collectively, is considering the rights
of parties who have not appeared in the litigation, and fixing
rights between two individuals by reference to outstanding rights
in other persons (strangers to the suit), which a general rule of
law inhibits.^* Take the case of an appropriator condemning a

87 Baron Parke, in Embrey ▼. ment, to the effect that riparian pro-
Owen, 6 Ex. 352. • prietors in a stream are a clase of

38 Part II, c. n. persona in the nature of a close

38a Supra, sec. 319. borough, and tluit any one of them has

^ Part II, e. 11. a right to object to the introduction,

89a Supra, sec. 196. "Then it is into that class, of persons who have

pnt in another way, in an extremely not got property bordering on the

ingenious way, in Mr. Barber's argu- stream. Well, where is the authority

502 THE COMMON LAW OP RIPARIAN RIGHTS. S 321

single riparian owner's right on eminent domain. The appropria-
tor will not be allowed to say that the damage to the single pro-
prietor whose right is being condemned is only nominal because

of the large number of other riparian proprietors with whom he
must share. Tet such would be the result if the collective rights
of the whole body of riparian proprietors can be considered with
regard to an appropriator at all, when he is litigating with only
one of them.

It may be remarked that in all the more recent cases declaring
damage to be entirely immaterial, had a possible prospective dam-
age to use been regarded as material, it would have been found
to exist on the facts' presented and to have warranted injunction

♦

even under the Modoc case. The riparian proprietor in the recent
cases showed ability to use all the water diverted from him; he
had capacity to use it if he in the future so decided, and« of course,
the common law will protect future use as much as present use.
As there was thus prospective damage shown, this may possibly
be a ground on which to reconcile the later cases with the Modoc
case, and have them in no way inconsistent. That there was pros-
pective damage in the recent cases appears, for example, in the
Anaheim case, saying the taking of a part of the water, would not
leave enough for plaintiff's land;^ and in the Huffner case, say-
ing that the right to restrain a diversion ''does not rest upon the
extent to which they have used the water, nor upon the injury which
might be done to their present use."^^ This may be contrasted
with the Modoc case which spoke of there being ''no injury to him
or his land, present or prospective.^*

The views of Professor Pomeroy are certainly always entitled
to consideration. He said: "But the larger and permanent
rivers of the State, the San Joaquin, and its affluents like the
Merced, the Tuolumne, the Calaveras, and others coming down
from the heights of the Sierras, and the Sacramento with its
similar branches, the Bear, the Yuba, the Feat^ier, and others,
when not polluted by hydraulic mining, if reasonably and prop-

for thatf It Ib an ingenioufl Bugges- it strikes me as a false analogy al-
tion, but no aathority has been cited together." Lindley, L. J., in Ken-
in support of it, and I am very wary sit v. Great Eastern By., [1S84] 27
of extending to the discussion of the Gh. D. 122, 136.
riglits of water an analogy drawn 40 150 CaL, at 335.
from close boroughs or anything of « ^^ p^ ^^ ^g^ j^aUcs ours,
that sort. I distrust the argument; '

§ 322

PROTECTION or THE BIGHT.

503

erly controlled and utilized, can certainly furnish an adequate
and constant supply of water, for the purpose of irrigation, to
vast cpmnuinities of landowners in addition to the riparian pro-
prietors upon their very banks." .... ** Communities of owners
at a distance from the larger streams should be entitled to reach
and appropriate this excess of their waters after the wants of the
riparian proprietors are reasonably satisfied, without any condem-
nation or payment of compensation, since such a use would not
substantially affect any rights held by the riparian proprietors on
the streams." .... ''After the reasonable needs of the riparian
proprietors have been fairly and reasonably ascertained and satis-
fied, all the excess of the waters of any such stream belongs of
right, for the purposes of irrigation, to those communities of non-
riparian landowners who are so situated, geographically and topo-
graphically, that they can in the best manner appropriate and util-
ize such surplus of the waters. "^^*

§ 322. Same — Storm Waters. — Some California cases have, in
this connection, distinguished storm or flood waters in a stream
from the natural flow thereof. Qranting, if necessary, that the
riparian proprietor is entitled to the whole natural flow even though
it is shown he can never now or hereafter make use of all of it, yet
the cases now in view hold that storm waters even after reaching the
ehlmnel are not part of the natural flow, but a fortuitous foreign
body of water that has made its way there. Consequently, while
asserting* that impossibility of damage is immaterial where the. nat-
ural flow is alone concerned, they refuse to recognize any right in
the riparian proprietor to this non-natural flow in the absence of
possible damage to his use of it.^ This is in accord with a similar
suggestion in Lux y. Haggin:** *'We are not prepared to say but
that even where the common law prevails, provision may be made
for the storing and distribution of waters, the result of extra-
ordinary floods caused by the melting of the snows, or long-con-
tinued and heavy rains in the mountains or near the source of a

^a Pomeroy on Bipaiian Bights,
sees. 156, 158, 160. Italies ours.

42 Baxter v. Gilbert, 125 Gal. 584.
58 Pac. 129 (dissenting opinion of
Beatty, C. J.) ; Fifleld ▼. Spring Val-
ley Co., 130 Cbl. 554, 62 Pae. 1054;
Coleman v. LeFranc, 137 Cal. 214, 69
Pae. 1011, and cades infra. In Ana-

heim W. Co. V. Puller, 150 CaL 327,
88 Pae. 978, the ease of Modoc L. &
W. Co. V. Booth, 102 Cal. 151, 36
Pac. 431, is explained as possibly de-
cided upon tlus flood-water theory.
See, also, Huffner v. Sawday (Cal.
Sup.), 94 Pac. 424.
« 69 Cal. 255, 10 Pac. 674.

504

THE COMMON LAW OF BIPAEIAN EIGHTS.

S 322

river, since such an extraordinary freshet would not be the or-
dinary flow of the stream. "

As to such storm waters, their taking has been held to be wrong-
ful only when actual or prospective damage is possible to the use
of the complaining riparian proprietor. When not so, the taking
has been allowed.^ When damage possible, denied: thus, surplus
over ordinary flow cannot be diverted from riparian owners in ab-
sence of a showing at what stages, if at all, the surplus could be
diverted without damage to the riparian proprietors.^ This rule
has been approved in Nebraska,^ saying: ** Connected with this
same question is involved the right of the plaintiff, even as against
a riparian' owner, to divert the storm or flood waters passing down
the stream in times of freshets. Hall at most, as a riparian owner,
was entitled to only the ordinary and natural flow of the stream,
or so much as was found necessary to propel his mill machinery,
and could not lawfully claim, as against an appropriator, the flow
of the flood waters of the stream. ' '

But the distinction between a natural and non-natural part of
the river, which remained in the river for months in these cases,
has been denied.^^* And in defining what are such extraordinary
waters, the rule has been so narrowed as almost to destroy it, for
it is held not to include annual or periodical swellings of a stream
even though due to storms, if those storms are seasonal. In an
early case it is said: "But the rights of the riparian proprietor
do not depend upon the quantity of water flowing in the stream.
Nor can that flow be said to be an extraordinary flow which can be
counted upon as certain to occur annually and to continue for

44 In Pifield V. Spring Valley
Water Works, 130 Ckl. 552, 62 Pac.
1054, it is held that a riparian pro-
prietor is not entitled to an injunc-
tion to restrain a water company en-
gaged in supplying water for public
use from diverting the storm or flood
waters of the creek which will not
prevent the flowing over his land of
the ordinary waters of the stream,
nor in any way damage his land, or
interfere. with the rights appurtenant
thereto. See, also, Edgar v. Steven-
son, 70 Oal. 286, 11 Pac 704; Heil-
bron V. '76 Land Co., 80 Cal. 189, 22
Pae. 62; Huffner v. Sawday (CaL
Sup.), 94 Pac. 424; Black's Pomeroy
OD Water Bights, sec. 75; and cases

impra, note 42. The case of Edgar
V. Stevenson is usually cited in this
connection, though it rested chiefly
on the law of appropriation, and its
citations are cases of successive ap-
propriators. See supra, sec. 47.

45 Semble, Miller v. Enterprise etc.
Co., 145 Oal. 652, 79 Pac. 439; Miller
V. Madera Co. (Cal. Sup.), Oct. 2,
1907.

46 Crawford v. Hathaway, 67 Neb.
325, 108 Am. St. Eep. 647, 93 N. W.
781, 60 L. R. A. 889.

47 Cal. etc. Co. v. Enterprise etc.
Co., 127 Fed. 741. See, also, anUf
sec. 101, Surface Water, see. 94,
Watercourse.

% 322 PROTECTION OF THE RIGHT. 503

months."^ And in the recent case of Miller v. Madera etc. 00."*®
it was held that to constitute such non-natural waters, the rise
must be extraordinary and occurring only on very rare occasions.
It is not sufficient if an annual overflow, of regular annual occur-
' rence, even if at highest stages overflowing banks and spreading
over adjacent low-lying lands, where the overflow continues to
move down with the main flow in a continuous body, not becoming
vagrant, lost or wasted, but recedes back into the channel when
the water stage lowers, and is a condition to be anticipated in every
season of ordinary rainfall, failing only in seasons of drought
This definition of what is such non-natural flow so narrows it as to
practically destroy the distinction between a natural or non-natural
part of the fert;ream. It leaves these authorities on all-fours with
those of a preceding section that there must be possible future
(though not necessarily present) damage to constitute a wrong
against the riparian proprietor, without the insertion of the flood-
water idea. A rehearing has beei;i granted in the Miller case.

These cases hence proceed upon the principle already set forth
that possible damage to the complaining proprietor's capacity of
use, prospective if not now present, must be shown before an act
is wrongful. This was the way in which the California court has
last explained them in the case just quoted from,^ saying: ''But
counsel for appellants rely upon the cases of Fifield v. Spring
Valley Water Works,** and Coleman v. La Franc,*^ in sup-
port of their claim that a riparian proprietor cannot restrain
the diversion of the storm or freshet waters of a stream when
such diversion will not prevent the flowing over his land of
the ordinary waters of the stream, or in any way interfere
with his right appurtenant thereto. We do not understand
these authorities cited to sustain the proposition as broadly as

appellant contends All they decide is, that an injunction

restraining the diversion of a storm or flood waters will not be
granted at the instance of a riparian owner when it appears that he
will not be injured in any way by such diversion."

■

48 Heilbron v. Fowler etc. Co., 75 00 Miller v. Madera etc. Ck).

Cal. 431, 7 Am, St. Eep. 183, 17 Pac. 51 130 Cal. 352, 62 Pac. 1054.

•'^« (CI. Sup.), Oct. 2, 1907. A '' ^^' ^^' ^14, 69 Pac. 1101.

rehearing has been granted, and is
now pending.

506 THE COMMON LAW OF BIPABIAK BIGHTS. S 323

The storm water cases are explained in two other, recent eases,
as resting on the groond that "during times of extraordinary floods
such diversion will not perceptibly diminish the flow below, "^
meaning, apparently, to apply the principle only where the facts
show the diversion to be within the role "de minimis,*' This would
not leave the doctrine of great practical importance, since the flood
waters constitute the major portion of California streams in winter,
and a diversion of them is not only i>erceptible, but is practically
a diversion of the entire winter stream.

§ 323. Same. — ^It may be suggested in this connection that the
impounding of storm waters which would not, in any event, reach
lower proprietors in the absence of the impounding works, raises
an entirely different question.^ Where the facts show that the
presence of such wateis in the channel is^du^ to the labor of the
impounder, it is an artificial increment to the stream produced by
the labor of man, and belongs to him who produced it, because a
man must be allowed to enjoy the fruits due to own labor alone.
This is a principle of universal application elsewhere discussed.^
"The water itself is the property of the company. It was not
taken from a running stream nor from a lake, nor from any source
where the government could assert that it alone had the right to
control and use it. It was collected by the company as it de-
scended from the heavens. Whatever may be the differences of
opinion as to the ownership of running waters, or of waters of
navigable streams, or of lakes, it has never been doubted that water
collected by individual agency, from the roof of one's house, or
in hogsheads, barrels or rese'rvoirs, as it descends from the clouds,
is as much private . property as anything else that is reduced to
possession, which otherwise would be lost to the uses of man."^
But the fact of artificial cause of the presence of the water in the
channel is essential. In the cases in the preceding section the claim
of artificial agency extended merely to the detention of the water
and not to the cause of its presence in the channel.

6S Huffner v. Sawdaj, Anaheim W. 65 Supra, see. 234 ; also see sec. 153

Co. ▼. Fuller, and also McFarland, J., et seq.

in Vernon Irr. Co. v. Los Angeles, w Field, J., in Spring Valley W.

supra. W. V. Schottler, 110 U. 8. 847, 28

M See, however. Southern Cal. Co. I;, ed. 173, 4 Sup. Ct. Bep. 48. See,

V. Wilshire, 144 Cal., at 73, 77 Pac. also, Pomona W. Co. v. San Antonio

767. W. Co., 93 Pac. 881.

S§ 324, 324a PROTECTION OF THE RIGHT. 507

§ 324. Declaratory Decree. — ^As between riparian proprietors,
decisions have already been given ^'^ where, during the complaining
proprietor's non-nse, a peremptory injunction was refused, and in-
stead a decree rendered declaring the complaining proprietor's
right of future use, to prevent its loss by prescription; in effect
quieting title to his right of future use. In some of the cases there
given, this was done where the party complained of was using the
water on* distant non-riparian land (city supply, -in one case), and
the language used is general, and would apply likewise to a conflict
between a riparian and non-riparian owner where the former was
not using the water.

In a leading English case it has been said that where a peremp-
tory injunction is asked against a non-riparian proprietor during
plaintiff's non-use, it may, perhaps, not be granted where the con-
tinuance of the diversion will not ripen into a right by prescrip-
tion, as where the non-riparian owner disclaims to be acting as of
right, and only intends to use the water at such times when the
riparian proprietor does not use it.^ A similar statement appears
in a decision by Justice Story ."^

§ 324a. Conclusions.— In view of the above state of the au-
thorities, no conclusion can be drawn as to the right of a subsequent
appropriator against existing riparian owners, other than that the
matter is very unsettled. The decision of Chief Justice Shaw
in Elliott V. Fitchburg Ry. in favor of such diversion in the absence
of possibility of damage is usually said to be the American as op-
posed to the English nile, and has a good number of positive
California decisions in support of it. If it were not that the very
recent California cases are following the English rule, we would
have said that the American rule was esticblished in the West.

67 Supra, sec. 318. 59 Webb v. Portland Cement Co.,

M Swindon W. W. v. Wilts etc. Co., 3 Sum. 189, Fed. Cas. No. 17,322.
7 H. of L. 697.

508 THE COMMON LAW OF RIPARIAN RIGHTS. § 325

CHAPTER VIII.

PROTECTION OF RIGHT (CONTINUED).

A. FORMS OF I]^JTJRY.

§ 325. Forms of injury.
S 326. PoUution.

B. PROCEDURE.
§ 327. Parties.
S 328. Injunction.

•

S 329. BiUs to quiet title, settling rights, or for apportionment.

§ 330. Same.

S 331. Same.

§ 332. Damages at law.

S 333. Pleading.

§ 334. Judgment or decree.

A. FORMS OF INJURY.

§ 325. FormB of Injniy. — ^We have ended the discussion of the
criterion of wrongfulness or legal injury to the complaining pro-
prietor, which criterion is the same whatever form the injury may
take. It may be by diminution or diversion, by retardation or ac-
celeration, by backing the water and flooding the upper proprietor,
or by polluting the water and deteriorating its quality. In all,
the test is whether the act done by the proprietor complained of
does unreasonable present damage, or, in the absence of present
damage, unreasonably impairs the future capacity of the complain-
ing proprietor to make an equally beneficial use of the water.

Concerning diminution or diversion, that is so closely connected
with the previous discussion that further consideration here would
be repetition. Concerning retardation or acceleration, much will
be found in. the Eastern decisions where steadiness of flow for mill-
power is the chief use of water instead of irrigation as in the West ;
but the writer's notes contain no Western decisions where an in-
jurious retardation or acceleration aside from a diversion was in-
volved.^ Concerning backing the water upon an upper proprietor,

1 Except Kalawa etc. Co. v. Kalawa etc. Co. (Wash.), 94 Pac. 469.

§ 326

PROCEDURE.

509

the writer has considered a discussion of the law of flooding or its
converse, drainage, foreign to the field of this book.^

§ 326. Pollution. — A deterioration of quality of the water
which does unreasonable present damage or unreasonably impairs
the capacity of the complaining proprietpr equally to make a future
use of the water, is wrongful. Pollution by cattle fouling the water
may be wrongful, and enjoined.^ A riparian proprietor may enjoin
pollution of a stream though there is another stream on his land
which he might use.*

To cut tree? and allow them to fall into a stream and interrupt
it, or to decay there and pollute it, is not within the reasonable
uses allowed a riparian owner, and he will be enjoined.*^ A lower
riparian owner may get an injunction against city sewage.® In
granting such an injunction a recent case '^ says, after examination
of authorities therein cited; ''From a careful examination and con-
sideration of these authorities, and many others, we have reached
the conclusion: (1) That the settled doctrine of the English coufls,
as well as some of our State courts, is that a lower riparian pro-
prietor is entitled to recover damages for the pollution of the waters
of a stream by a municipal corporation, by the discharge of sew-
age into the stream, on the broad ground of common sense and
natural justice; (2) that the supreme court of the United States
and a number of the State courts base their decisions on the ground
that it is a taking of private property for public use,, within the

2 As an example, however, of back-
ing: If a railroad company, in build-
ing a bridge across a stream, fails to
leave ample passageway for so much
water as might reasonably have been
anticipated would flow in the stream,
and the bridge dams the water back
on the riparian owner to his injury,
the railroad company wiU be liable for
the resulting loss. Atchinson etc. Co.
V. Herman, 74 Kan. 77, 85 Pac. 817.
As an example of drainage: One pro-
prietor cannot build a ditch to drain
his land if thereby he diverts from a
stream, water in which another pro-
prietor is entitled to a reasonable use,
if thereby the possibility of such rea-
sonable use is prevented. Bauers v.
Bull, 48 Or. 60, 78 Pac. 757. See,
also, vfifra^ Percolating Water.

3 Barton v. Union Cattle Co., 28
Neb. 350, 26 Am. St. Rep. 340, 44 N.

W. 454, 7 L. R. A. '457. A lower
riparian owner is entitled to protec-
tion by injunction from the pollution
^ of the stream which* prevents his rea-
* sonable use of it ' in the absence of
special equities or qualifying circum-
stances which take the case out of the
general rule. Headnote to Thropp v.
Harper's Perry etc. Co. (C. C. A., 4th
Cir.), 142 Fed. 690.

4 Brown v. Gold Coin Min. Co. (Or),
86 Pac. 361.

5 Fisher v. Feige, 137 Cal. 39, 92
Am. St. Bep. 77, 69 Pac. 618, 59 L.
B. A. 333.

6 Peterson v. Santa Bosa, 119 Cal.
387, 51 Pac. 557.

7 Markwardt v. CSty of Guthrie, 18
Ofcla. 32, 90 P&c. 26, 9 L. R. A., N.
S., 1150.

510

THE COMMON LAW OF RIPAEIAN BIGHTS.

§ 327

meaning of the Federal constitution ; (3) that other States hold that
it is a damage to property, within the meaning of their constitu-
tional inhibitions against the taking or damaging of property with-
out just compensation ; and (4) a number of the States hold that .
the lower riparian proprietor is entitled to recover damages for
injury to his health, comfort, and repose, on the ground that it
is the maintenance of a nuisance. While these decisions are based
upon different ground, yet, upon whatever ground they may rest,
they all, with the exception of the decisions of the Indiana courts,
seem to uniformly hold-that, under such circumstances, damages are
recoverable, and many of them hold that, where the evidence is
clear and convincing, injunction will lie to restrain the continuance
of the nuisance. ' '

With regard to pollution from mining debris, reference is made
to a preceding part ® of this book.

B. PROCEDURE.9

§ 327. Parties. — Throughout this book we have shown the
fundamental rule that a case must be decided upon the relative
rights of the parties before the court, without regard to the rights
of strangers to the suit.^® The rule of procedure set forth under
the law of appropriation, that the rights of strangers to a suit can-
not be considered, applies with equal force here. In a suit between,
a riparian owner and a wrongdoer, the rights of other riparian
owners cannot be set up. Consideration for other riparian owners
may limit the iise of one of them at their complaint, but a wrong-
doer is not entitled to be substituted to such consideration, nor to
get the benefit of it, or use the rights of other riparian owners,
strangers to the suit, in his o^ii defense. A defendant may be
a wrongdoer to plaintiff though plaintiff be himself a wrongdoer as
to other persons who are not parties to the action. A repetition
of .the authorities need not be made here.

A reversioner may sue.'^ A lessee of riparian proprietor may
maintain injunction suit against wrongdoer.^^

8 Part I, c. XII.

0 See, also, ante. Part I, c. XII.

10 Ante, sees. 195, 267.

" Gould V. Stafford, 91 Cal. 146,
27 Pac. 543.

12 Crook V. Hewitt, 4 Wast. 749, 31
Pac. 28.

S§ 328, 329

PROCEDURE.

511

§ 328. Injunction. — The right to an injunction has been suf-
ficiently covered by the discussion of injunction under the law of
appropriation.** The formal requisites are the same, though the
application of them to the rights of a riparian proprietor involve
other considerations, sufficiently set forth in the chapter just pre-
ceding this.*^

Laches or acquiescence will bar an injunction. This is a ques-
tion which must be distinguished from estoppel, elsewhere con-
sidered, as estoppel would bar a right, and there must be some
degree of turpitude to raise it, whereas laches but bar an injunc-
tion because of lack of diligence in seeking the remedy, while leav-
ing an action at law for damages. The riparian proprietor who
waits two years, for example, after the wrongful act has been held
to have no right to an injunction.^*

§ 329. Bills to Quiet Title, Settling Bight, or for Apportion-
ment. — The right of a riparian proprietor to the flow of water
through his land is inseparably annexed to the soil, not as an
easement, or appurtenance thereto, but as a part or parcel of the
land,*® and an action to quiet his title to such water must, under
the California constitution, be commenced in the county where the
land or some part of it is situated.*^ ,

In a suit in equity for apportionment of water, the plaiutiff
must plead the amount of his irrigable riparian lands, and the
amount of water reasonably necessary for his use upon such lands.*®
''Appellant's claim to the waters as a riparian owner is not pressed
with much seriousness, and this is natural, considering that there
is no pleading as to his riparian need for use of these waters, either
as to quantity or amount of land upon which they are to be em-
ployed. "*«

13 Supra, sec. 198 et seq.

14 Chapter VII.

15 Lond Gold M. Co. v. Blake (C.
C), 24 Fed. 249; Thomas v. Wood-
man, 23 Kan. 217, 33 Am. Rep. 156;
Clark V. Cambridge Irr. Co., 45 Neb.
798, 64 N. W. 239. See Lux v. Hag-
jrin, 69 Cal. 255, 10 Pac. 674; Monte-
dto etc. Co. V. Santa Barbara, 144 Cal.
578, 77 Pac. 1113.

16 Lux V. Haggin, 69 Cal. 255, 391,
10 Pac. 674.

17 Miller & Lux v. Madera etc. Co.,

Cal. 9up., Oct.- 2, 1907, rehearing
pending.

18 Wutchumna Water Co. v. Pogue,
ISlCal. 105, 90 Pac. 362; citing River-
side Water Co. v. Gage, 89 Cal. 420, 26
Pac. 889; Wiggins v. Muscupiabe L.
& W. Co., 113 Cal. 194, 54 Am. St.
Rep. 337, 45 Pac. 160, 32 L. R. A.
667; San Luis Water Co. v. Estrada,
117 Cal. 182, 48 Pac. 1075.

lO' Montecito etc. Co. v. Santa Bar-
bara (Cal. Sup.), June 5, 1907, 90
Pac. 935, citing Riverside Water Co.
V. Gage, 89 Cal. 410, 26 Pac. 889.

512 THE COMMON LAW OF RIPARIAN BIGHTS. §§ 330, 331

He must also, on the trial, furnish evidence upim the volume of
the stream, the character of the soil, the number of proprietors,
and the various surrounding circumstances from which the ques-
tion of reasonableness is to be determined in each case.^

§ 330. This should not necessarily apply to injunction, since
plaintiff is entitled to be protected against excessive injury to his
rightful use now or hereafter, whatever the extent of that use may
be. The bill for an apportionment is distinct from one for an
i;i junction. ''It is suggested that the court ought to ascertain and
determine the rights of the respective parties, and fix them in
the decree, so that hereafter there may be no controversy concerur
ing the matter. In the very nature of things, however, it is im-
possible in a case of this character to make such a decree. The
rights of the several riparian proprietors are equal, each being
entitled to but a reasonable use of the water for irrigating pur-
poses, and what constitutes such use must necessarily depend upon
the season, the volume of water in the stream, the area and char-
acter of the land which each riparian proprietor proposes to ir-
rigate, and many other circumstances ;: so that it s^ems to us there
is no basis upon which the court could frame any other decree than
one enjoining and restraining the defendant from diverting the
water from the stream to the substantial injury of the present or
future rights of the plaintiffs, and, as the decree of the court be-
low is to that effect, it will be aflSrmed." ^^

The rule that the riparian right is one to be protected against
unreasonable interference, leaves it to be decided as a question
of fact in each case what that may be, so that the allegation and
proof of unreasonableness of defendant would appear to be suffi-
cient allegation of ultimate fact where no apportionment is asked.

§ 331. This rule of evidence and pleading has, however, been
applied also to. injunction suits. The Oregon court held as above,
that the injunction must be granted without such evidence. But
there is a tendency to apply the rule also to injunctions, and re-
fuse them in the absence of definite pleading and evidence upon

20 Coleman v. La Franc, 137 CaL ^^^J Riverside etc. Co. v. Gage, 89
oi^ Ao t>o« mil. T..««. « n««« Cal. 410, 26 Pac. 889.
214, 69 Pac. 1011; Jones v. Conn, ^i Jones v. Conn, 39 Or. 30, 8^

39 Or. 30, 87 Am. St. Rep. 634, 64 ^m. St. Rep. 634, 64 Pac. 855, 65
Pac. 855, 65 Pac. 1068, 54 L. R. A. Pac. 1068, 54 L. R. A. 630.

S 332

PEOCEDUEE.

513

what is reasonable in amount. It can be explained only on the
ground that the court of equity, having taken jurisdiction on a
bill for injunction, will, to settle the controversy, proceed also
as on a bill for settlement of rights and for apportionment. Ac-
cordingly, in a recent case, a decree merely enjoining defendant ^
from damaging plaintiff's domestic use was remanded with in-
structions to ascertain and fix some definite amount for plain-
tiff's domestic use.^ In Bogers v. Overacker^ it was said: **In
Riverside Water Company v. Sargent,^ which was an action to
determine the relative rights of plaintiffs and defendants to the
use of water flowing in the Santa Ana River, the court said: 'The
decisions of this court establish that, in cases like the present, the
findings and judgment must fix the extent of the superior right,
viz., the quantity of water to be allowed to the party whose claim
is paramount, otherwise the judgment fails to attain the certainty
necessary to an estoppel upon the main subject of the litigation. ' ^
In all these cases the judgment was set aside because of uncer-
tainty. In the case at bar the judgment can never be legally en^
forced because of its uncertainty as to the amount of water de-
fendant must let pass to the riparian lands of plaintiffs and it
could not be pleaded as an estoppel,^ because the rights of neither
party are fully determined thereby." ^

The rights of several plaintiff proprietors cannot be decreed inter
se, in the absence of issue joined inter se.^

§ 332. Damages at Law. — ^As damages at law are compensa-
tory only, where the water is not used by the complaining party,
his damages from an excessive use of another will be nominal only,

22 As in Jones y. Conn, supra,

28 The opinion in Eogen v. Over-
acker, dealing with riparian rights
cites in support of this ruling mostlj
cases decided on the law of appropria-
tion.

24 4 Cal. App. 333, 87 Pac. 1107.

26 112 Cal. 230, 44 Pac. 560.

26 Citing Dougherty v. Haggin, 56
Cal. 522; Alhambra Water Company
V. Eichardson, 72 Cal. 604, 14 Pac.
379; Lakeside Ditch Co. v. Crane, 80
Cal. 182, 22 Pac. 76; Barrows v.
Fox, 98 Cal. 63, 32 Pac. 811; Lillis
V. Emigtant Ditch Company, 95 Cal.

Water Biffhts — 88

553, 30 Pac.. 1108; also Smith ▼. Haw-
kins, 120 Cal. 86, 52 Pac. 139, and
Steinberger v. Meyer, 130 OaL 156,
62 Pftc. 483.

27 Citing sec. 1098, Code Civ. Proe.

28 For other cases seeming to ap-
ply this rule to biUs for injunetion as
well as for apportionment, see Morris
V. Bean (Mont.), 146 Fed. 431; Me-
Cook Irr. Co. v. Crews (Neb.), 102
N. W. 249.

29 Bathgate ▼. Irvine, 126 Cal. 135,
77 Am. St. Eep. 158, 58 Pac. 442, com-
mented on in Montecito W. Co. v.
Santa Barbara, 144 Cal. 578, 77 Pac.
1113.

514

THE COMMON LAW OF BIPABIAN BIGHTS. §§ 333, 334

for he suffers no actual damage and the action stops the running
of any prescription and prevents the wrong from ripening into -a
right. This is a principle well recognized.

The riparian proprietor cannot recover damages for injury the
diversion does to his non-riparian land."^

§ 383. Pleading. — ^The riparian right must be specifically
alleged.^^ The complaint or declaration must allege that lands
are riparian or that a stream passes by or through them."^ Aver-
ments of ownership and possession of riparian land, or of land by
or through which the stream flows, sufficiently allege the riparian
right,** and averments of use are surplusage." The acts of a de-
fendant riparian proprietor must be alleged to be unreasonable.^
How far the above is insufficient in bills in equity for apportion-
ment, see preceding sections.

§ 334. Judgment or Decree.^ — A count alleging a right as
appropriator will not support a judgment as riparian owner.^
If a decree assigns use on non-riparian lands, it shows that the
court was dealing with rights of appropriation and not riparian
rights.*® The decree may enforce the distinction betweeA natural
and artificial uses, and be drawn accordingly.** ''It must be re-
membered that no injunction can be awarded which can deprive
the defendant of the reasonable use of the water for domestic pur-
poses and for the support of life."^

80 Heinlein v. Fresno etc. Co., 68
Cal. 35, 8 Pac. 513.

31 Wntchumna Water Co. ▼. Pogue,
151 Cal. 105, 90 Pac. 362.

82 Silver Creek etc. Co. v. Hayes,
113 Cal. 142, 45 Pac. 191.

38 Shotwell ▼. Bodge, 8 V^ash. 337,
36 Pac. 254; Rineon etc. Co. v. Ana-
heim etc. Co., 115 Fed. 543. Contra,
Lobdell V. Simpson, 2 Nev. 274, 90
Am. Dee. 537.

34 Chauvet v. Hm, 93 Cal. 408.
36 Swift V. Goodrich, 70 Cal. 103,
11 Pac. 561.

36 See, also, supra, sees. 209-214.

37 Supra, sec. 210 et seq.

38 Wutchumna Water Co. v. Fogue,
151 Cal. 105, 90 Pae. 362.

38 For sueh a deeree, see Union etc.
Co. V. Dangberg, 81 Fed. 73.

40 Stanford v. Felt, 71 Cal. 249, 16
Pac. 900. .

S 335

LOSS OF RIGHT— EMINENT DOMAIN.

515

CHAPTER IX.

LOSS OF RIGHT.

A. ABANDONMENT AND ADVEBSE USE— AVULSION.

S 335. No abandonment.
S 336. ATulsion*
§ 337. Advene use.

B. EMINENT DOMAIN.
fi 338. In general.
S 339. A question of procedure.

§ 340. Same. * '

S 341. Same.
§ 342. Same— In California.

A. ABANDONMENT AND ADVERSE USE— AVULSION.

§ 336. No Abandonment. — ^Riparian rights cannot be lost by
abandonment, wherein they differ in an essential element from
appropriations. The latter depend on continued beneficial use ; but
in the riparian right, future possible use stands as high as actual
present use. Riparian rights remain though the water is put to no
use at all.^ Should a subsequent appropriator make. use of this
water, he cannot complain when the riparian owner above takes it
from him thereafter .for his own use.^

Non-use does not affect the riparian right. The rule of the com-
mon law as stated in the frequently quoted passage from Creswell,
J., in Sampson v. Hoddinott,® is: *'A11 persons having land upon
a flowing stream have, by nature, certain rights to the use of the
stream, whether they exercise them or not, and they may begin
to exercise them whenever they will."* Another case says: *|U8e

1 Hargrave v. Cook, 108 Gal. 72,
41 Pae. 18, 30 L. B: A. 390; Lux v.
Haggin, 69 Cal. 255, 10 Pae. 674;
Duc^orth ▼. WatflonviUe etc. Co., 150
Cal. 520, 89 Pae. 336, and eases supra,
see. 22, in support of California doe-
trine; New York etc. Co. v. Bothery,
132 N. T. 293, 28 Am. St. Rep. 575,
30 N. E. 841; Coming v. Troy Iron
etc. Factory, 40 N. Y. 191.

2 Bathgate v. Irvine, 126 Cal. 136,
77 Am. St. Bep. 158, 58 Pae. 442.
See supra, Part II, e. YII, Damage.

8 1 Com. B., N. S., 690.

* Accord Weiss v. Oregon etc. Co.,
13 Or. 496, 11 Pae. 255; Gray v. Pt.
Plain, 94 N. Y. Supp. 698, 105 App.
Div. 215; Bogers ▼. Overaeker, 4 Cal.
App. 333, 87 Pae. 1107.

516

THE COMMON LAW OF RIPARIAN RIGHTS.

S 335

does not create the right, and disuse cannot destroy or suspend it." ^
The Washington court hfts, however, said in this connection:® **It
is not to the State's interest that the water of a non-navigable
stream should be idle or going to waste because one of its citizens,
having a preference right to its use, unjustifiably neglects to avail
himself thereof, while others stand ready and willing, if permitted,
to apply it to the irrigation of their arid lands." This fear of
the rule permitting non-use by a riparian owner is overdrawn, for
to that may be applied what Judge Henshaw said (speaking of
percolating water) :'' "For it is not to be supposed that with an
abundance of water, .... if the soil itself was fit for cultivation,
those waters would not long since have been used to transform the
desert of Perris valley into a fruitful garden."

In adjusting rights, the riparian owner must be left enough for
possible riparian use, though no evidence of an intent to make such
use appears.®

Not only is non-use no abandonment, but non-use raises no es-
toppel in the absence of additional matter showing active miscon-
duct as discussed heretofore on the question of estoppel.® The
magnitude of a hostile investment is not properly enough per se
to raise an estoppel. ** Before locating the plaint the owners were
bound to know that every riparian proprietor is entitled to have
the waters of the stream that washes his land come to it without
obstruction, diversion or corruption, subject only to the reason-
able use of the water by those similarly entitled .... and to
determine for themselves at their own peril whether they should
be able to conduct their business of the size and character of
Brandywine Creek without injury to their neighbors ; and the mag-
nitude of their investment, and their freedom from malice furnish
no reason why they should escape the consequences of their own
folly. "10

5 Lux y. Ha^gin, 69 Cal. 255, 390,
lOPac. 674. ''It probably never oc-
curred to anyone that the owners, by
neglecting to appropriate the grasses
and trees naturally growing on sueh
lands to some useful purpose, left
them open and subject to a rightful
appropriation by anyone else.'^ Lux.
V. Haggin (Cal.), 4 Pac. 919 at 922.

6 State V. Superior Court (Wash.),
91 Pac. 968. See infra, sec. 338.

7 In Newport v. Temeseal etc. Co.,
149 Cal. 531, 87 Pac. 372, 6 L. R. A.,
N. S., 1098.

® Wiggins V- Museupiabe etc. Co.,
113 Cal. 194, 54 Am. St. Rep. 337, 45
Pac. 160, 32 L. R. A. 667.

9 See Cal. etc. Co. v. Pastoral etc.
Co., 127 Fed. 741.

10 Western Paper Co. v. Pope, 155
Ind. 394, 57 N. E. 719, 56 L. R. A.
899, granting injunction against di-
version. Concerning estoppel, see the
discussion under the law of appropria-
tion, supra, sec. 254. Concerning non-
use, see supra, sees. 312-320.

§§ 336, 337

LOSS OF RIGHT^EMINENT DOMAIN.

517

In some Nebraska eases the court has greatly weakened upon
this rule." But the point chiefly involved in those cases was one
of eminent domain, in which connection they are considered below.

The doctrine that the rip.arian right is not affected by non-use •
is modified also in Washington in regard to eminent domain pro-
ceedings ."

§ 336. Avulsion. — The right may be lost by a natural change
in the channel, making the stream flow elsewhere ; the riparian pro-
prietor has no right to ditch it back.^^ If the change is sudden
instead of gradual it is known as '* avulsion. "^^ In case of such
sudden change it has been held, however, that the riparian pro-
prietor may ditch it back if he does not delay beyond a reasonable
time.^ At all events, he has a right to take precautions by
strengthening the banks against sudden changes by freshets and
washouts,^^ if he can do so without trespassing upon the land of an-
other.^'' Where a river suddenly changes its course and abandons
its former bed, the respective riparian owners are ^* entitled to
the possession and ownership of the soil formerly under its waters,
as far as the thread of the stream. If the change is gradual in-
stead of sudden, the right is not lost, because the accretion be-
longs to him with his own land and preserves his right of access.^®

§ 337. Adverse Use. — Riparian rights may be lost by adverse
use; and this claim is the favorite last resort of claimants to the
use of water ; it will be found discussed in innumerable cases. In
general, the requisites are the same as those elsewhere discussed.^

11 McCooK Irr. Co. v. Crews (Neb.),
102 N. W. 249; Cline v. Stock (Neb.),
102 N. W. 265.

12 Infra, sec. 338; State v. Superior
Court (Wash.), 91 Pac. 968.

13 Paige V. Bockj Ford etc. Co.,
83 Cal. 84, 21 Pac. 1102, 23 Pac.
875; Wholey v. Caldwell, 108 Cal. 95,
49 Am. St.'Bep. 64, 41 Pac. 31, 30
L. B. A. 820.

14 Missouri v. Nebraska, 196 IT. S.
23, 49 L. ed. 372, 25 Sup. Ct. Rep.
155; Fbwler v. Wood, 73 Kan. 511,
117 Am. St. Rep. 584, So Pac. 763,
6 L. R. A., N. S., 162.

15 York County v. Rollo, 27 Ont.
App. 72; Morton v. Oregon Ry. Co.
(Or.), 87 Pac 151.

16 Cox V. Barnard, 39 Or. 53, 64
Pac. 860.

17 Wholey v. Caldwell, 108 Cal. 95.
49 Am. St. Rep. 64, 41 Pac. 31, 30
L R. A. 820.

18 Kinkead v. Turgeon (Neb.), 109
N. W. 744, 7 L. R. A., N. 8., 316.

19 For a discussion of the law of
accretion, see McBride v. Steinwender,
72 Kan. 508, 83 Pac. 822; Fowler v.
Wood, 73 Kan. 511, 117 Am. St. Rep.
534, 85 Pac. 763, 6 L. R. A., N. S.,
162.

20 Sec. 240 et seq. See Gallagher
V. Montecito etc. Co., 101 Cal. 242, 35
Pac. 770; Bathgate etc. Co. v. Irvine,
126 Oil. 135, 77 Am. St. Bep. 158, 58
Pac. 442; Oregon e"tc. Co. v. Allen
etc. Co., 41 Or. 209, 91 Am. St. Bep.
701, 69. Pae. 455.

518

THE COMMON LAW OF EIPABIAN BIGHTS.

§ 337

The distinction between upper land lower use must be kept in
mind. A lower use, since it in no way interferes with the natural
flow above, is no invasion of a right above. No action would lie,
and so no prescriptive right nor estoppel can arise below stream
against an upper riparian owner.^^ There is no such thing as a
prescriptive right of a lower riparian owner to receive water as
against upper owners. Receiving the full flow of a stream for
over ten years was held ^ not to give a prescriptive right that will
prevent reasonable use of its waters by an upper owner, saying:
^'On the arguments of the case at bar it is suggested that defend-
ant Hall had acquired a prescriptive right to the full flow of the
stream by ten years' user. There cannot be, in the very nature
of things, any such thing as a prescriptive right of a lower ripa-
rian owner to receive water of a stream as against upper owners." ^

Nor will use of the surplus above over the possible present or
future needs of the riparian proprietor be adverse to him.** Ap-
propriation of considerable quantities of water in seasons when that
may be done without sensible injury to lower owners does not give
a prescriptive right to divert the whole stream in dry seasons.^
This follows, is supported by, and results from the decisions given
in discussing damage; that is, the decisions holding that in the
absence of the possibility of damage, present or future, no wrong
is done the lower owner. If no wrong is done, no prescription can
arise. We refer to that discussion, without repeating it further
here. On the other hand, there are strong decisions that even if
no possible damage, yet the upper use of the surplus may be an in-
jury and adverse and a prescriptive right may arise. That is, they
say, there is an injury because a prescriptive right will arise, and
that a prescriptive right arises because there is an injury. The
decisions conflict.*^

An upper use which does actual damage to a lower proprietor
and impairs his capacity of use, and which (if the upper user is

21 Bathgate v. Irvine, 126 Gal. 135,
77 Am. St. Bep. 158, 58 Pac. 442
(eTen if a notice of appropriation be
posted) ; Cave v. Tyler, 133 Gal. 566,
65 Pac. 1089; Clark v. Allaman, 71
Kan. 206, 80 Pac. 571, 70 L. B. A.
971.

22 Crawford v. Hathaway, 67 Neb.
326, 108 Am. St. Bep. 647, 93 N. W.
781, 60 L. B. A. 889.

28 Accord Walker v. Lillingston, 137
Cal. 401, 70 Pae. 288; Daim r.

Thomas, 69 Neb. 683, 96 N. W. 142;
Mud Creek etc. Co. v. Vivian, 74 Tex.
170, 11 S. W. 1078.

24 Supra, Part II, c. VII.

25 Meng V. Coffey, 67 Neb. 500, 108
Am. St. Bep. 697, 60 Pac. 910, 93
N. W. 715 ; Clark v. Allaman, 71 Kan.
206, 80 Pac. 571, 70 L. B. A. 971;
Fifield v. Spring Valley Water Co.,
130 Gal. 552, 62 Pac. 1064.

26 Part II, c. VII, ante.

§ 338

LOSS OF EIGHT— EMINENT DOMAIN.

519

a riparian proprietor) is also in excess of the reasonable use to
which the upper proprietor is entitled, will start the running of
a prescription immediately, since it is an immediate wrong.^

It has been suggested that beneficial use is not necessary to ac-
quire a prescriptive right against a riparian owner, but the ques-
tion of beneficial use in prescription is probably one of color of
title, and hence involved with regard to the one in whose favor
prescription is invoked, and not with regard to the party against
whom invoked.^®

It has been said that the effect of prescription is to act as an
extinguishment of the riparian right.^

A prescriptive right, being once acquired, is not enlarged by sub-
sequent enlargement of claim. Such enlargement must be con-
sidered independently, upon its own merits.***

B. EMINENT DOMAIN.

§ 338. In General. — ^The diversion from a riparian proprietor
is a taking of his right of use, and cannot be done for private use,
and cannot be done even for public use without eminent domain
proceedings. A water company catitiot deprive other riparian
owners of the water merely because it is also a riparian owner.*^
Nor can a city take the water for a water supply without con-
demnation.*^ It is a taking of property, and condemnation pro-
ceedings are necessary, as in regard to other property even on nav-
igable streams, and even where the taking is for improvement of
navigation.**

What is a public use has already been considered.

The riparian right may be condemned. In Lux v. Haggin it is
said: ''This court has held that the property of a riparian owner
in the waters flowing through his land may, upon due compensation

27 Alta etc. Go. v. Haneoek, 85 Gal.
219, 20 Am. St. Bep. 217, 24 Pac.
645.- See supra ^ Part 11, c. VTI,
concerning present damage.

2S See ante, see. 247, Golor of Title.

20 Alta L. ft W. Go. v. Hancock.
85 GU. 228, 20 Am. St. Bep. 217,
24 Pac. 645.

80 MUler y. Madera etc. Go., Gal.
Sup., Oct. 2, 1907, now on rehearing.

31 Bigney y. Tacoma etc. Go., 9
Wash. 576, 38 Pac. 147, 26 L. B. A.
425; Dnckworth y. Watsonyille etc.
Go., 150 Gal. 520, 89 Pac. 338.

32 City of New Whatcom y. Fair-
hayen etc. Go., 24 Wash. 493, 64 Pac.
735, 54 L. B. A. 190; Emporia y.
Soden, 25 Kan. 588, 37 Am. Bep. 265.

3a Bingham y. Port Arthur etc. Go.
(Tex. Sup.), 97 8. W. 686.

520

THE COMMON LAW OF RIPARIAN BIGHTS.

§ 338

to him, be condemned to the public use by proceedings initiated by
a corporation organized to supply a town with water.^ In the
learned opinions of Justices Ross and Myrick in that case the right
of the riparian proprietor to the use of the water is designated
'property*; an * incident of property in the land inseparably an-
nexed to the soil,' as part and parcel of it; *an incorporeal ^ here-
ditament appertaining to the land.' The main question in the
case was whether the code provided for a condemnation of that
species of property- to public uses. The question was answered in
the affirmative." This condemnation does not require the con-
demnation of any land; the incorporeal right itself may be con-
demned as an individual thing without, as is sometimes done,
condemning a riparian strip of land.^

In Nebraska the law ^ authorizes the condemnation of the right
of a private riparian proprietor to the use and enjoyment of a
natural stream flowing past his land, or its impairment by an ap-
propriation of such water for irrigation purposes; and such ripa-
rian proprietor may recover damages in the same way and sub-
ject to the same rules as a person whose property is affected in-
juriously by the construction and operation of a railroad.^ In
Texas ^ it is held that while, in that State, the irrigation act pro-
vides for the condemnation of a right of way only for an irriga-
tion canal, still, under Sayles' Civil Statutes,^ authorizing canal
companies to condemn any land necessary for their use, an irriga-
tion company «i may divert water which a riparian proprietor had
the right to have flow in a certain channel, and to the use thereof
as such owner.

The damages on eminent domain are usually held to be the loss
in value of the riparian land consequent upon loss of the use of
the water, future possible use being of equal importance with use
actually bdng made (or if no use is being made at all).^ The

34 Citing St. Helena W. Co. v.
Forbes, 62 Cal. 182, 45 Am. Rep. 659.

88 Note the use of the word "in-
corporeal."

86 Bigelow V. Draper, 6 N. Dak:
152, 69 N. W. 570 ; St. Helena Water
Oo. ▼. Ibrbes, iupra, 62 Cal. 182, 45
Am. Bep. 659.

8T Comp. Stats. 1901, sec. 41, art.
2, c. 93a, and of section 21, article 1,
of the Constitution.

88 Crawford v. Hathaway, 67 Neb.
325, 108 Am. St. Bep. 647, 93 N. W.
781, 60 L. B. A. 889; McCook Irr. Co.
V. Crews (Neb.), 102 N. W. 249.

30 McGee Irr. Co. v. Hudson (Tex.
Sup.), 22 S. W. 967.

40 Art. 628, sec. 6.

41 Formed under the act of 1889 of
the laws of Texas.

42 Lux V. Hamn, 69 Cal. 255, 10
Pac. 674. See (5l. Code Civ. Proc,
sec. 1248.

§ 338 LOSS OP RIGHT— EMINENT DOMAIN. 521

damages are measured by depreciation in value of the land, and
cannot be figured at so much a front foot on the stream.^ The
Nebraska rule is to figure dkmage on the analogy to one whose
property value is decreased by smoke from a railway, saying: "The
right of the property owner to the benefit and advantage of a
street and highway adjacent to his land and the right of the ripa-
rian owner to the reasonable use and enjoyment of the water in a
flowing streaiB over ov adjoining his land are not without features
rendering them in a measure analogous."^ And gives loss of
future use little weight where no present use, contrary to a cardinal
principle of the common law."*** In Nebraska it has been held : **In
consequence, if a reasonable use of the water consistent with a
like use by other riparian owners cannot be made in a particular
case, the injury of the riparian owner by reason of appropriation
[and condemnation] of the water by an irrigation enterprise is
nominal only."^

This violates the rule that the rights of strangers to a suit cannot
be considered. At common law only riparian proprietors can take
water^ and one not such cannot defend his trespass by saying that
there are other riparian proprietors having as good (or better)
right to the water as plaintiff. The same principle should apply
to damages on eminent domain. The other proprietors may never
seek to use the water, in which case the one who does can take,
against a wrongdoer, all he could ever possibly put to use, though
it might be the whole stream, unlimited by the like use of others
who do not insist on their rights. The condemnor should not be
allowed to set up their rights for them (unless he joins all as de-
fendants ).*''

In Washington,*^ the riparian owner must submit to the con-
demnation of the riparian right to the natural flow of the water,
with the limitation, however, that water that is used by said per-
son himself for irrigation, or that is needed for that purpose by
any such person, may not be condemned. This reservation from
condemnation of use for irrigation was held ^ to cover only present

43 Hercules W. Co. v. Fernandes '^^ ^ee authorities, ante, sees. 195,
(Cal. App.), 91 Pac. 401. 267.

44 Crawford v. Hathaway, 67 Neb. ^ ^® Under sec 4156, Ballinger's Ann.
325, 108 Am. St. Rep. 647, 93 N. W. ^^^*" L. a • r^ ^ .rrr ^ ^
781, 60 L. R. A. 889: ai T>®^n«r ^S^^^^f ^^^^ (^ash.)

^K -kr /^ 1 />. ^^ P*<^- ®®^- See, also, State ex rel.

45 McCook T. Crews, supra. Settle Falls etc. Co. v. Superior Court

46 McCook etc. Co. v. Crews, 70 (Wash.), 90 Pac. 650; Nesalhous v.
Neb. 109, 96 N. W. 996. Walker (Wash.), 88 Pac. 1032.

522

THE COMMON LAW OF RIPABIAN BIGHTS.

§ 339

use, and only such future use as is in present contemplation and is
actually accomplished with reasonable diligence within reasonable
time — about two or three years, the court said.®^ The decision,
however, is limited strictly to a construction of the statute, and is
to the effect that the exemption from condemnation does not extend
to the full common-law right to irrigate. That right is independent
of .present use, or of diligence, or of intent to make future use; all
possible future use, intended or not, however long in accomplish-
ment, is preserved by the common law. In denying this full ex-
tent to the exemption, the Washington court in effect construes the
statute not to exempt the full riparian right to irrigate, but only a
restricted right is exempted, analogous rather to the law of ''future
needs" in appropriation.^^

§ 33d. A Question of Procedure.*-Mr. Mills ^^ remarks: ''It
would seem, however, that in instances where the stream system
is of considerable size and the number of riparian proprietors who
would be affected by a diversion of water is large, the proceedings
to condemn their respective rights and compensate each for his in-
jury or loss of the flow of the stream would be of such magnitude
and so expensive as to practically bar the appropriator from at-
tempting if

Such a case came to the writer's attention recently where a
water company sought to acquire a stream for the supply of a
neighboring city. Condemnation proceedings had been instituted
against perhaps fifty defendants below the point of diversion. It
was the writer's conclusion that such condemnation was inad-

80 In the opinion it is said: ''The
question, then, turns upon the mean-
ing and intention of the legislature
by the expression 'needed,' as em-
ployed- in section 4156, BaUinger's
Annotated Codes and Statutes. We
think it means the water necessary to
irrigate the land of the littoral or
riparian owner which he now has
under irrigation, and also that which
he intends to, and will, place under
irrigation within a reasonable time.
It cannot be supposed that the legisla-
ture intended that a riparian owner
could prevent an irrigating company
from appropriating water not then in
use, but which the riparian owner
might need and use upon his land
at some distant, indefinite time in the

future. Such a construction would be
in the interest of the speculator,
rather than for the encouragement of
the land improver and home builder.
The statute gives the riparian owner
a preference right, upon the theory
that he needs and will avail himself
of the privilege thus given him. If
he is not using the water, and does
not purpose to use it as soon as
practicable in the ordinary and rea-
sonable development or cultivation of
his lands, then there is no reason
why the water should be withheld
from others who need and will
promptly use it if permitted."

61 SuprOf sees. 171-173.

52 MiUs' Irrigation Manual, p. 276.

§ 340 LOSS OF EIGHT— EMINENT DOMAIN. 523

equate because it ignored the proprietors upon the upper half
of the stream and would not destroy their right of use^ on their
own lands/ and hence would not secure to the company the ex-
elusive right to the whole stream which it sought. To secure the
exclusive right to the entire stream would necessitate the con-
demnation of rights from source to mouth.

Since the riparian right may be condemned for a public use on
eminent domain proceedings, and since the important and large
enterprises are usually for purposes which are public uses (es-
pecially in view of the decision in Clark v. Nash)," anything which
facilitates condemnation is likel^'^ to be eagerly resorted to. And
there is a tendency to allow a short cut to condemnation which, if
generally adopted, will likely give rise to a system of condemnative
water rights in a class by itself.

The principle in question is that the special proceedings for con-
demnation, which are cumbersome and lengthy and expensive, need
not be followed. In the law of eminent domain, wherever the
special proceedings are necessary and not followed, equity .will
enjoin simply because the taking of a man's property is an ex-
traordinary proceeding which must be done by the prescribed
method strictly or not at all. But there is a line of decisions, con-
cerning railroads holding that such injunction will be refused
when the acts ccmiplained of are not a taking of property
but a collateral damaging of it, such as where property values along
a railroad de'crease because of the noise, smoke or other similar
matters. In such cases the injunction to stop the running of the
railroad until the eminent domain formalities are complied with is
frequently refused, and the damages to the property owners art
instead assessed in the injunction suit.^ There is a very recent
line of Nebraska cases applying this rule to the condemnation of
riparian rights, saying the diversion of water from the riparian
proprietor is not a taking of any property belonging to him, but
only a collateral damage to his riparian land.

§ 340. Same. — In Crawford v. Hathaway^ the riparian pro-
prietor secured his injunction, and a hearing was denied," but

08 108 IT. S. 361, 49 L. ed. 1085, 25 By. Go. v. Slauson, 138 Cal. 342, 94

Sup. Gt Bep. 676; «ttpra, sec. 259. Am. St. Bep. 58, 71 Pae. 352.

M See Preeno etc. Go. v. S. P. Go., » 60 Neb. 754, 84 N. W. 271.

135 Gal. 202, 67 Pac. 773; Southern W In 61 Neb. 317, 85 N. W. 306.

524

THE COMMON LAW OF RIPARIAN RIGHTS.

§ 340

the case was later reopened *^ and reversed on the ground stated
that the defendant irrigation company had the power of eminent
domain and tendered damages in the injunction suit. And the
same was held in McCook etc. Co. v. Crews " and Cline v. Stock.**

These cases further held that the condemnor could himself enjoin
use by the riparian proprietor if the injunction bill was accom-
panied by a tender of damages ; likewise a bill to quiet title against
the riparian owner or a suit to settle rights, and applies the same
to injunctions against the riparian owner .•^ The condemnor must,
with his bill or plea, tender payment of damages.^ The condemnor
could not, it is held,^ maintain a suit against upper riparian owners
without offering to do equity by paying whatever damages ac-
crued to such owners by reason of its appropriation.®^

The rule is based by the court only on the principles of eminent
domain, saying: '^This does not mean that a riparian owner's
right to the use of water for irrigation purposes is to be destroyed,
but only that it is the intent of the law that the private right
shall be subordinated, and, when required for public use, taken
under the law of eminent domain, and for which the owner of the
riparian estate, whose property is taken or injured, is entitled to
due compensation, to be awarded in any suitable action.'*®*

37 In 67 Neb. 325, 108 Am. St. Rep.
647, 93 N. W. 781, 60 L. R. A. 889.

M (Neb.), 102 N. W. 249.

69 (Neb.), 102 N. W. 265.

w In the headnote to MeCook v.
Crows (Neb.), 102 N. W. 249, in
Northwestern Reporter, it is said:
"Where an appropriator has acquired
a valid right to the use of water
under the laws governing the taking
and use of water for the purposes of
irrigation, the right is, in its nature,
property, and entitled to be protected
as such, and for any invasion of or
injury to the same the law will af-
ford a remedy. And in such a case
equity will restrain an upper riparian
owner from subsequently diverting
water, the right to use which had been
thus acquired, without requiring the
appropriator to institute proceedings
to condemn the rights under the com-
mon law of all riparian owners to the
reasonable use of water flowing in the
stream for irrigating riparian lands. ' '

61 McCook etc. Co. v. Crews, 70
Neb. 109, 96 ^. W. 996.

«2 McCook Irr. Co. v. Crews, 70
Neb. 109, 96 N. W. 996.

63 And in Crawford v. Hathaway,
67 Neb. 325, 108 Am. St. Rep. 647,
93 N. W. 781, 60 L. R. A. 889. "But
when plaintiff sued him, and prayed
for an injunction against him, he
could demand that plaintiff do equity,
and pay his damages before any relief
be awarded. The court, we think, was
justified in enjoining any interference
with the riparian rights of defendant
Hall until this was done."

In McCook Irr. Co. v. Crews, 102
N. W. 249, the court even held th«
tender of compensation unnecessary
and relegated the riparian owner to
his action at law for damages — a posi-
tion entirely indefensible aside from
the question of laches or estoppel.

« McCook Irr. Co. v. Crews, 102 N.
W. 249.

S 341

LOSS OF BIGHT—EMINENT DOMAIN.

525

§ 341. Sune. — ^To apply this role of procedure to condemna-
tion of riparian rig^hts would so facilitate the taking of property
for irrigation or other large enterprises (especially in view of the
holding in Clark v. Nash,^ that the taking may in some cases and
under certain circumstances be for an individual's private enter-
prise and not necessarily for general supply) as to be far-reaching
in its practical results, opening the way for a system of condemna-
tive water rights easily obtained. But there are weaknesses in
the Nebraska cases that will militate against their being followed
elsewhere.

The cases proceed upon the ground that diversion of water is
not a taking of property belonging to the riparian owner, but only
a collateral damaging of the riparian land. In this they oppose
authority. At common law the riparian right is a part and par-
cel of the land,^ and diversion of water, from it is as much *' tak-
ing" of property as cutting down the trees growing there; and all
authority is to the effect that the law of eminent domain will be
applied, and the taking enjoined, until the regular condemnation
proceedings are completed.^ The leading authority to this effect
is the decision of Chancellor Kent in Gardner v. Newburg,^ where
it is said: '*A right to a stream of water is as sacred as a right to
the soil over which it flows. It is a part of the freehold, of which
no man can be disseised but by lawful judgment of his peers, or by
due process of law," and holding that a riparian proprietor will
not be relegated to an action at law for damages.^

Again, the Nebraska cases distinguish riparian owners actually
using the water and those not at present using it, in opposition to
the universal rule that the riparian right does not depend on actual
use, but is as secure without use as when the use is made.'^^

65 198 U. S. 361, 49 L. ed. 1085,
25 Sup. Ct. Bep. 676. Swpray sec. 259.

66 Supra, see. 284.

67 Lewis on Eminent Domiiin, see.
61; Pomeroy's Equitable Remedies,
see. 561.

68 2 Johns. Ch. 161, 7 Am. Dec.
526.

68 The Nebraska eonrt itself said
in the Crawford ease: "To say that
there is no such thing as a property
right of a riparian owner to the use
of the stream flowing along or by his
land is to work a revolution in the
jurisprudence of the State, and vio-

late fundamental principles which lie
at the very foundation of the sys-
kem.''

70 The Nebraska court says in Mc-
Cook Irr. Co. v. Crews, 102 N. W.
249: "They are in no wise sought to
be restrained of their usufru^uary
estate as riparian owners, of which
they were possessed and were using
when plaintiff's rights accrued.
While they at that tune were pos-
sessed of the naked legal right to a
reasonable use of de water as
riparian owners, yet such right was
not coupled with an actual (uversion

526

THE COMMON LAW OF BIPABIAN BIGHTS.

§ 341

And last, the Nebraska court laid stress upon the fact that the
condemnor had, nnder claim as appropriator, secured the approval
of the State Board of Irrigation; the court holding here, as in
other connections, that the determination of the State Board is,
so far as possible, conclusive upon the courts. This greatly
weakens these decisions as authority in jurisdictions where no such
board exists, and in those where (as is the general tendency)^
their determinations are not held conclusive upon the courts. The
holding was that by securing the board's approval and actually
diverting the water under it, the appropriator had acquired a legal
right ; perhaps, so to speak, had disseised the riparian owner, and
the taking was thereby accomplished though payment of damages
remained to be done.'^^ This gives to the board the power to li-
cense (so as to be binding on the court) what would otherwise
be a trespass; to create rights in one, by taking them from another ;
to violate the constitution guarantying private property rights.

For these reasons, it is doubtful whether the Nebraska cases'
will not stand by themselves in allowing this short cut to the tak-
ing away of riparian rights by condemnation.

The principle is avowedly stated as one of procedure only. * * The
question in this case, however, which it is proposed to further con-
sider, relates more to the remedial rights of the parties to the
controversy, than to a determination of the substantive rights or

or application of such water to ir-
rigate riparian lands If this

were a ease where the riparian owner
had actually diverted water to irri-
gate riparian landa before the rights
of an appropriator attached, the easf
presented would be entirely differentj ,
and it could hardly be doubted that
the appropriator would, in*^^quity, be
cdmpelled to make due compensation
before a court would restrain the
tfurther diversion to and use of such
waters by such riparia^ owner.''
And considers the riparian right of
no substantial value in the absence of
actual, present use, contrary to all
authority, as elsewhere herein shown.
Supra, sees. 313, 335.

71 Infra, sees. 392-408.

72 "The plaintiflP's right to the ap-
propriation having been duly estab-
lished and adjudicated by the State
Board of Irrigation, this right, it
would seem, woiUd be protected by the
courts in any litigation where the

question arose, and ata action in the
nature of one to quiet title would be
unnecessary." McGook etc. Co. v.
Crews (Neb.), 102 N. W. 249; and in
the same case elsewhere: "In its ap-
propriation of the water of the stream
for the purpose of irrigation, and the
acquirement of the right to the use
thereof, it had, in legal contemplation,
effected a taking of the upper and
lower riparian owners' right to a rea-
sonable use of the water of mieh
stream to irrigate riparian lands."
And in dine v. Btock (Neb.), 102
N. W. 265: "If these defendants had
made due application to the State
board, and had obtained the adjudica-
tion of that board giving them the
right to appropriate a given quan-
tity of the pubHc water of the State
for irrigation purposes, and, in pur-
suance of such adjudicated right, had
con8truct«d irrigation works, a lower
riparian owner could not enjoin the
continued use of such water," ete.

§ 342 LOSS OF BIGHT— EMINENT DOMAIN. 527

interests in property of which they may be possessed/'*^' Yet
denying the riparian owner the procedure by which his right is
protected, his right is, in effect, denied in substance. The court
takes away the riparian right when it takes away the means by
which it lives.

■

§ 342. Same— In Oalifomia.— In Eatz v. Walkinshaw^^ and
Newport v. Temescal etc. Co.,''^ regarding percolating waters, a rule
was laid down as applicable to all waters. The latter case states
it as follows: "And, finally, upon this proposition it may be said
that where the interests of the public are involved and the court
can arrive in terms of money at the loss which plaintiff has sus-
tained, an absolute injunction should not be granted, but an in-
junction conditional merely upon the failure of the defendant to
make good the damage which results from its work. Such an action,
if successful, should be regarded in its nature as the reverse of an
action in condemnation. The defendant in effect would be held
to be damaging private property without just .compensation first
made to the owner, and failing to do so, should be enjoined from
further damage."

In a later case where this rule was sought to be enforced against
a riparian proprietor ''^ it is said: "The last point made by appel-
lant is in the nature of an estoppel invoked against the plaintiff.
It is insisted that no relief by injunction should be granted the
plaintiff, because it is claimed that plaintiff knowingly stood by
while appellant, as a public service corporation and at great
expense and notoriously and publicly, constructed a large and ex-
tensive system of works designed for the public use, and brought
them to completion before the commencement of this action ; that
under this state of alleged facts plaintiff is precluded from all
right to equitable relief, and its only remedy is an action at law
for damages. In support of this position, the principle announced*
in that respect in Eatz v. Walkinshaw *" and Newport v. Temescal
Water Co.™ is invoked. The principle contended for and sus-

78 MeCook Irr. Co. v. Crews (Neb.), "^^ MiUer ft Lux v. Madera etc. Co.,

102 N. W. 249. Oal. Snp., Oct. 2, 1907 (rehearing now

M 141 Cal. 116, 99 Am. St. Bep. P®L^??)- ,.«««. « «
35, 70 Pac. 663, 74 Pac. 766, 64 L. B. « " i^i ^^L^^^!?: J?^ ^J^X ?*/ /^JJ*
A. 236. ^^y 70 Pac. 663, 74 Pac. 766, 64 L. R.

A Vi* ^^f '' " ^"" '"' ' "" ''• """'liQ Oil. 531, 87 P«. 371, 6 L.

A., JN. B., IWa. jj ^ ^ jj g^ jjjjg

528 THE COMMON LAW OF RIPABIAN BIGHTS. S 342

tained by the cases cited and others is unquestionably correct."
But holds the rule inapplicable upon the facts presented in that
case ; viz., the riparian proprietor for a long time did not know the
proposed construction, or the likelihood of damage from the pro-
posed use, and brought suit as soon as he knew such intention and
likelihood of damage and similar facts. Only in the Temescal
case was the injunction actually refused, and that largely on other
grounds.™

The California rule bears some analogies to the Nebraska rule,
but is essentially different in that it is not denied that there is a
taking of property, nor asserted that non-use alone is ground for
the refusal of the injunction, and is not based on any special stat-
utes. The California rule is based on considerations of equity ju-
risdiction rather than of appropriation or of eminent domain;
namely, of laches and of the rule of the balance of inconvenience
in favor of the public as grounds for refusal of the injunction.^
The possible objections to this view of it are the' great conflict
upon the rule of the balant;e of inconvenience, and the provision in
the California constitution, article 1, section 13,®^ which com-
mands a hearing in court and a jury trial before taking possession
of or damaging another's property for public use, even where prop-
erty is only "damaged'' and not "taken." ^^

79 8e€, also, Verdugo W Co. y. so Ante, sec. 204/ Balance of Con-

Verdugo (Cal. Sup., Jan. 23, 1908), venience.

93 Pac. 1021. In Mioceiie etc. Co. v. an rv. \ 3 * oe>r

Jacobsen (Alaska), 146 Fed. 680, the ®^ Q™^*^ '***^' ^^'^ 2^^-

fact that the defendant had the right ^ See Weber v. Sante Clara etc,

of eminent domain was one ground for ^^-y ^" ^^- ^65 ; Trahem v. San

refusing an injunction against diver- Joaquin etc. Co., 69 Cal. 320.

don.

§§ 343-345 COMPABISON. 689

CHAPTER X.

COMPARISON OF THE LAW OF APPBOPRIATION AND OF

RIPARIAN RIGHTS.

§ 343. Pnrpose of this chapter.

$ 344. First principles.

§ 345. As dependent on ownership of land.

§ 346. Contiguity to stream.

S 347. Mode of acquisition.

§ 348. Beneficial use.

§ 349. Preference of domestic use.

§ 350. Equality vs. Priority.

§ 351. In California.

§ 343. Purpose of This Chapter. — It is our purpose in this
short chapter to bring together in concise form, without citation
of authorities, matters set forth, with regard to t^ systems of
appropriation and riparian rights, in the foregoing two parts
of this book', showing likenesses ut the two systems, differences, and
points where the differences are being bridged and the systems con-
verging.

§ 344. First Principles. — ^Under both systems the corpus of
runnix^ water in a natural stream is not the subject of ownership ;
neither real property nor personal property, but in a class with-
the air in the atmosphere. A right (called '* usufructuary") may
exist to take it. When taken, the cofpus is private property, per-
sonal property. The common law borrowed these pirincipleB from
the civil law, and the law of appropriation borrowed them from the
common law.

§ 346. As ^DepencliQt on Ownership of Land.— To protect the
liiujowners bordering upon the stream from trespass upon the
land, the common law excludes non-riparian owners from the use
of the water. The conunon law limits the use to riparian pro-
prietoYB upon the riparian lands. But formerly in the West the

Wftter Rights — 84

534

UNDEBGROUND WATER.

§ 352a

mon law.^ It can undoubtedly be appropriated.^ A definite under-
ground stream may be appropriated through a tunnel, and will be
protected against a taking through a later tunnel by another per-
son.' Probably the landowner has the rights of a riparian owner
in streams flowing in a defined course under his ground.^ The
point was left open in Hale v. McLea,^ but the general principle
is established that underground streams are treated on the same
principles as surface streams.^

The presumption is against the existence of a definite under-
ground stream.'^ Where the only water upon land ''is percolating
water, oozing through the soil beneath the surface in an undefined
and unknown channel (the United States supreme court says)
of course this excludes the idea of a river, creek or stream of run-
ning water."®

The question of underground streams shades into the question
of sub-flow of surface streams, next to be considered. That is,
'when the surface water disappears in the dry season, there may
still be a seepage down the channel that does not appear on the
surface. Such a case was dealt with as a subterranean stream in
one*case.^ Again, the stream may flow only in parts of its course
on the surface, being carried over the drier spots by means of
the sub-flow. Intermittent streams of this character are treated

' 1 Hanson v. MeCue, 42 Cal. 303,
at 308, 10 Am. Rep. 299; OroM t.
Kltts, 69 Cal. 217, 58 Am. Rep. 558,
10 Pac. 409; Lux v. Haggin, 69 Cal.
255, at 394, 10 Pac. 674; Hale ▼.
MeLea, 53 CaL 578; Strait ▼. Brown,
16 Nev. 317, 40 Am. Rep. 497; Pome-
roy on Riparian Rights, see. 63 ; Fam-
ham on Waters, p. 2084.

2 Ihid,; Kinnej on Irrigation, see.
298 ; Howard v. Perrin, 8 Ariz. 347, 76
Pac. 460.

8 Cole Silver Min. Co. v. Virginia
etc. Co., 1 Saw. 470, Fed. Cas. No.
2989. See, also, Whitmore t. Utah
I<\iel Co., 26 Utah, 488, 73 Pac. 764;
Keeney v. Qftrmo, 2 N. Mex. 480.

4 Tarwood ▼. West Los Angeles etc.
Co., 132 Cal. 204, 64 Pac. 275; Ver-
dugo W. Co. ▼. Verdugo (Cal. Sup.,
Jan. 23, 1908), 93 Pac. 1021, per
Beatty, C. J. ; Taylor v. Welch, 6 Or.

198; Pomeroy 's 'Riparian Rights, sec.
63.
B 53 Cal. 578.

6 Ante, sec. 90 et seq. The point
was mentioned in Katz v. Walkinshaw,
141 Cal. 116, at 140 and 149, 99 Am.
St. Rep. 35, 70 Pac. 663, 74 Pac. 766,
64 L. R. A. 236.

7 Hanson y. McCue, 42 Cal. 303,
10 Am. Rep. 299; Metcalf ▼. Nelson,
8 S. Dak. 87, 59 Am. St. Rep. 746, 65
N. W. 911; Taylor v. Welch, 6 Or.
198 ; Pence v. Carney, 58 W. Va. 296,
112 Am. St. Rep. 963, 52 S. E. 702,
6 L. R. A., N. S., 266; Howard v. Per-
rin, 8 Ariz. 347, 76 Pftc. 460, affirmed
in 200 U. S. 71, 50 L. ed. 374, 26 Sup.
Ct. Rep. 195.

8 Howard v. Perrin, 200 II. S. 71,
50 L. ed. 374, 26 Sup. Ct. Rep. 195,
construing an Arizona statute.

0 Los Angeles v. Pomeroy, 124 Ckl.
597, at 632, 57 Pac. 585.

9 353 DEFINITE BODY 6F WATEB. 535

as a single stream.^^ Such a stream has been considered simply as
an underground stream.^^

§ 3B8. The Sub-flow of a Stream. — ^The second class of under-
ground water is watei: moving underground beneath a definite sur-
face stream. It is a scientific fact that below every river-bed not
absolutely impervious there is a more or less deep sub-stratum of
flow seeping with the stream through the soaked soil, the drawing
ofF of which results in a tapping of the stream itself. The recogni-
tion of this at law as a component of a stream is due to stubborn
litigation of rights on streams in the southern part of Cali-
fornia.^

The sub-flow of a stream is thus defined in Los Angeles v.
Pomeroy,** aflSrming the following charge of the trial court : ^*
'^If you find from the evidence that there is a bed or a river
bottom filled to a considerable depth with sand, gravel or other
porous material, meandering over which a stream runs on the sur-
face, and through and in which the water moves underground,
enough of it rising to the surface to supply the surface stream,
and the other portions of the underground water moving with a
much less velocity than the surface stream, and through a wider
or larger space in and through the interstices of the porous ma-
terial, but in the same general direction as the surface stream

and in connection with it, and in a course and within a space
reasonably well defined, the conditions being such that the existence
and general direction of the body of water moving underground
can be determined with reasonable accuracy, then that portion of
the water thus moving underground should be considered as a part
of the watercourse as well as that part which flows over the sur-

10 Lofl Angeles ▼. Pomero^, 124 Cal. Pac. 585; Yineland v. Aznsa etc., 126
597, 57 Pac. 585; Medano etc. Co. v. Gal. 486, 58 Pac. 1057, 46 L. B. A.
Adams, 29 Colo. 317, 68 Pac. 431; 820; McClintock v. Hudson, 141 Cal.
Kansas v. Colorado, 206 XT. S. 46, 51 275, 74 Pac. 849; Montecito etc. Co.
L. ed. 956; Huffner v. Sawda^, Cal. v. Santa Barbara, 144 CaL 578, 77
Sup., Feb. 18, 1908; Verdugo W. Co. Pac. 1113; S. C, 151 CaL 377, 90
y. Yerdugo (Cal Sup., Jan. 23, 1908), Pac. 935; Anaheim W. Co. v. Fuller,
93 Pac. 1021. 150 Cal. 327, 88 Pac 978 ; Verdugo

11 Yarwood v. West Los Angeles Cany'on W. Co. v. Yerdugo (Cal« Sup.,
Co., 132 CaL 204, 64 Pac. 275. Jan. 23, 1908), 93 Pac. 1021; Huff-

12 See Gould v. Eaton, 111 OaL 639, ner v. Sawday, Cal. Sup., Feb. 18,
52 Am. St. Bep. 201, 44 Pac. 319; 1908.

Gould ▼. Eaton, 117 Cal. 539, 49 Pac. is 124 Cal. 597, at 623, 57 Pac. 585.

577, 38 L. B. A. 181 ; Baker v. Gould, 14 Mr. Justice Lucien Shaw, now a

122 Cal. 240, 54 Pac. 845; Los An- member of the supreme court,
gales ▼. Pomeroy, 124 Cal. 597, 57

536

TJNDEBGBOXJiro WATEB.

S 353

face. ' ' And again, in Vineland Irr. Dist. v. Azusa Irr. Co. : '* " The
existence of a well-defined sub-surface flow within the bed and
banks of streams such as this is well recognized. Says Ejnney
on Irrigation, section 44: 'At certain periods of the year water
flows on the surface in a well-defined course, and there is at all
times what is known as the underflow. This is the broad and deep
subterranean volume of water which slowly flows through the sand
and gravel underlying most, if not all, the streams which traverse
the country adjacent to the mountain systems of the arid region.
These underground -streams are probably much greater in vol-
ume in some cases than the water upon the surface, and are, as
far as rights of appropriation or riparian rights are concerned,
but a valuable portion of the well-deflned surface stream.' " In
a Colorado case ^^ the court says:' "Those acqiiainted with the arid
region know that some of the most important &nd well-defined
streams become almost, and sometimes entirely, dry during a por-
tion of the year, and that there is at all times what is known as the
underflow.*^ This is the subterranean volume of water which
slowly finds its way through the sand and gravel constituting the
beds of the streams which traverse the country adjacent to the
mountains of this section, and to which rights by appropriation
may attach.'***

The existence of a sub-flow is a question of fact.*^ The evidence
necessary to establish it is further discussed in McClintock v. Hud-
son.^ It was flrst recognized in California in Los Angeles v.
Pomeroy,** the pioneer case, though it had already been repeatedly
urged upon the court.^ It has also received recognition in Colo-
rado " and in Utah.^

15 126 Cal. 486, at 494, 58 Pac.
1057, 46 L. B. A. 820.

i« Phitt Valley Irr. Co. v. Buckers
Irr. Co., 25 Colo. 82, 53 Pac. 334.

17 Citing Kinney on Irrigation, sec.
44.

18 Citing rbid.; Mcaellaad y.
Hurdle, 3 Colo. App. 430, 33 Pae.
280.

1* Lob Angeles ▼. P'omeroy, 124 Cal.
597, at 632, 57 Pae. 585.

20 141 Cal. 275, 74 Pac. 849.

21 124 Cal. 597, 57 Pac. 585.

22 See Gould v. Eaton, 111 Gal. 639,
.52 Am. St. Rep. 201, 44 Pac. 319;
Gould V. Eaton, 117 Cal. 539, 47 Pae.
577, 38 L. B. A. 181 ; Barker v. Gould,
122 Cal. 240, 54 Pae. 845.

28 See Platte etc. Co. v. Buckers
etc. Co., 25 Colo. 77, 53 Pac. 334; La
Jara etc. Co. r. BOansen, 35 Colo. 105,
83 Pac. 644; Buckers etc. Co. v. Far-
mers' etc. Co., 31 Colo. 62, 72 Pac.
49; Kansas v. Colorado, 206 U. S. 46,
51 L. ed. 956.

24 Whitmore v. Utah etc. Co., 26
Utah, 488, 73 Pac. 764.

! 354

DEFINITE BODY OF WATER.

537

§ 364. 8ab-flow is a Part of the Stream. — ^This sub-flow is a
part of the stream, and included in rights in the stream, as an in-
cident thereto. No rights to such water can be obtained against
existing appropriators or riparian proprietors (in jurisdictions
recognizing riparian rights) upon the stream, to their injury.
"One who has no legal right to the surface flow of the stream
may not, by indirection, acquire that right by a subterranean
tapping and taking of it. Riparian proprietors and appropriators
of the surface water still have the right to invoke the maxim, ^AqtM
currit et debet currere ui currere solehat,' ''^ In Los Angeles
V. Pomeroy,^ the court said that such subterranean water is a part
of the stream and cannot be diverted, whether it would come
to the surface or not. ''It belongs to the stream and must flow
on to the lower riparian proprietor. His right to the sub-surface
portion of the stream is identical with his right to the surface
flow, and is entitled to the same protection.*' ^

Likewise, regarding prior appropriators on the surface stream
as well as riparian owners.^ In one case^ the court says that
the waters passing through the sand and gravel constituting the
bed of the stream and the lands so nearly adjacent that the only
and natural outlet would be through such channel, are a part
of the waters of the stream. **If they are withdrawn, the result
is as much a depletion of the natural watercourse, of which they
constitute a part, as though diverted from the surface. Diversion
by this means cannot be permitted when the rights of others are in-
juriously affected, for the natural and direct sources supplying the
natural streams of the State must be protected from invasion;
otherwise the rights of appropriators could be destroyed."

In Kansas v. Colorado ^ the supreme court of the United States
held that the sub-flow is not a separate stream, nor entitled to be
considered separately from the stream, saying: **It is not properly

25 Monteeito ▼. Santa Barbara, 144
Oal. 578, at 588, 77 Pac. 1113.
28 124 Cal. 630, 57 Pac. 585.

27 Accord as to rtparian proprietors,
MeCluitock y. Hudson, 141 Gal. 275,
74 Pac. 840; Yetdiigo W. Co. v. Ver-
dugo (Gal. Sup.), 98 Pac. 1021.

28 Montecito etc. Co. v. Santa Bar-
bam, 144 Cal. 578, 77 Pac. 1113; S. C.
151 OaI. 377, 90 Pa<. 935; Los Angeles
V. Pomeroy, 124 Cal. 597, 57 Pac. 585;

Santa Barbara y. Gould, 143 Cal. 421,
77 Pac. 151; Huffner v. Sawday, Cal.
Sup., Feb. 18, 1908; Howcroft v.
Union etc. Co., 25 Utah, 311, 71 Pac.
487; Whitmore v. Utah etc. Co., 26
Utah, 488, 73 Pac. 764; Kansas y.
Colorado, 185 U. S. 125, at 147, 46 L.
ed. 638, 22 Sup. Ct. Bep. 552'; S. C,
206 U. S. 46, 51 L. ed. 956.

2© Buckers Irr. Co. v. Farmers' etc.
Co., 31 Colo. 71, 72 Pac. 49.

30 206 U. S. 46, 51 L. ed. 956.

538 UNDEBGBOUND WATER. 9 354

denominated a second and sub-surface stream. It is rather to be
regarded as merely the accumulatiQ^ of water which will always
be found beneath the bed of any stream whose bottom is not solid
rock. Naturally, the more abundant the flow of the surface stream
and the wider its channel, the more of this sub-surface water there
will be. If the entire volume of water passing down the surface
was taken away the sub-aurface water would gradually disappear.
And in that way the amount of the flow in the surface channel
coming from Colorado into Kansas may affect the amount of water
beneath the sub-surface. As sub-surface water, it percolates on
either side as well as moves along the course of the river, and the
more abundant the sub-surface water the further it will reach
in its percolations on either side as well as more distinct will be its
movement down the course of the stream."

The English cases regard the question more as one of withdrawal
of support, than of diversion of water. In an English case*^
it is said: ''You have a right to all the water which you can draw
from the different sources which may percolate underground, but
that has no bearing at all on what you may do with regard to water
which is in a deflned channel, and which you are not to touch.
If you cannot get at the underground water without touching the
water in a well defined surface channel, I think you cannot get
it at all."^ But this has been modified and restricted to cases
''in which there was direct tapping of an underground stream
flowing in a defined channel, and not merely percolating water
indirectly affecting the surface stream,"^ and as so explained
the English decisions refer not to the "sub-flow" but to definite
underground streams only.

Tapping the stream by a well or tunnel near its bank,^ or by
a ditch parallel to the stream,^ have been enjoined.

It was pointed out in several of the above cases that it is a
difficult matter to prove just how much a well or seepage tunnel
interferes with and taps a stream, since water must have seeped
into the well or tunnel from all directions; but this was held

M Canal Co. v. Shugar, L. B. 6 Ch. " Montecito »etc. Co. v. Santa Bar-

App. 483, Lord Hatherlej. 1>*"^> mpra; McClintock v. Hndson,

82 See, also, Village of Delhi v. ^e'T^""^ V^^^^^^^ "^^^

Youmans, 45 N. Y. 362, 6 Am. Rep. ""tl^^^^^Z^Tol T^ckem etc.

100.

[1907] 1 K. B. 601. CaL 204, 64 Pac. 275.

Co., 25 Colo. 82, 53 Pac. 334; of. Yar-
83 English V. Metropolitan etc. Co., ^ood v. West Los Angeles Co., 132

S 355 DEFINITE BODY OF WATER. * 539

to be a question of fact, to be determined in the ordinary way;
and the seepage tunnel will be unlawful to the extent that it is
shown to be tapping the surf sice stream of riparian owners or prior
appropriators.

■

§ 866. Separate Bights in Sub-flow. — Since the sub-flow is
but a part of the stream, rights can be obtained in it separately
only where no damage is done to surface or other existing claimants
on the stream.^ But where no damage, results to existing claim-
apts in their use of the stream, diversion of the sub-flow by
direct tunneling may, in a case of priority, give rise to an appro-
priation. This would not seem an appropriation of the sub-flow
as a separate thing, but merely an appropriation of part of the
stream itself in an indirect way, in case the stream is open to ap-
propriation. In some cases a seepage tunnel on the bank of a
stream was upheld against later claimants as an indirect appro-
priation of the stream.^ It has been held that an artificial chan-
nel may be provided to carry the surface flow to lower claimants,
after which pipes may be laid in the dry bed to collect the sub-sur-
face flow still remaining 'there. The pipe owner will have the
right to the 'flow thus brought to the surface when no damage
results to other existing claimants.^ This is, perhaps, an appro-
priation of the sub-flow.*®

The facts in the Vineland case are worth stating: The stream
in question was the San Gabriel River, where it flows over gov-
ernment land. There were three sets of claimants to the water :
First, those who had appropriated all the surface flow ; then an ir-
rigation company, who posted an appropriation notice and began
work on a tunnel for developing water, and who continued the
work on the tunnel later under compromise agreement with the
surface owners; finally an irrigation district which began another
tunnel on the opposite bank, and finished it first. The tunnel of
the company was upheld against that of the district — chiefly be-
cause the surface claimants had consented to it and had not
agreed to the district's tunnel; partly also, because the company's

36 Cases in last section, supra, Roberts v. Krafts, 141 Cal. 20, 74 Pac.

281

«T Vineland etc. Co. v. Azusa etc. as Pomona W. a>. v. San Antonio

Co., 126 Cal. 486, 58 Pac. 1067, 46 w. Co. (Cal. Sup., June 17, 1908), 93
L. R. A. 820; Whitmore ▼. Utah etc. Pac. 881.
Co., 26 Utah, 488, 73 Pac. 764. Cf. 89 See ante, sec. 234, Recapture.

540 UNDBBGHOTJiro WATER. § 355

tunnel, haying been started with a notice prior to the district's
tunnel was, as between the two, prior in time by relation, though
completed later than the other one.^

The question of riparian rights in the sub-flow as a separate
thing (being a case where one owned lands in a low bottom over
the sub-surface flow, but not abutting on the surface flow) has
been left open,^^ but seems to be recognized in another case.
In Verdugo Canyon Water Co. v. Verdugo,^ there was a canyon
occasionally, in times of heayy rains only, carrying a continuous
surface stream ; at all other times the stream (and branches) flowed
to a point where it disappeared, leaving a dry stretch in the canyon
below which it again appeared on the surface; an intermittent
stream. In the dry stretch an underground dam was placed,
collecting and diverting underground wat^r there. 'Wells were
also sunk outside the bed but near it, and above and below the
dam, which, if pumped unchecked, will cause the stream to cease
on the surface below them. The rights of the parties were much
complicated by previous partition and injunction decrees and by
agreements which we do not attempt here to state, and by varying
droughts. It was held, flist of all, that the fadts presented a case
of a single stream throughout, and that the sub-flow is a part of the
stream and cannot be taken by -^eUs in the bank or dam in the dry
stretch so as to diminish surface flow to the injury of any party
entitled to it , being a mere incident to the effectual preservation of
surface rights, saying: '^It is obvious that the continued presence
in the soil, sand and gravel, composing the bed of the canyon
of a sufScient quantity of water to supply and support these surface
streams in their natural state, is essential to their existence and
preservation, and that the parties have as clear a right to have
this quantity remain underground for that purpose as they have
to the stream upon the surface. Neither party should be per-
mitted to decrease this necessary quantity of undei^round water
to the depletion of the surface stream and the injury of those
to whom it has been assigned. This much is clear from the pre-
vious decisions of this court. "^ Next, if the proof shows a sur-
plus underflow that can be taken without injuring the surface

40 The notice posted is set forth in ^ Citing Los Angeles v. Pomotoy,

Part yil below. 124 Cal. 621, 57 Pac. 585; McCHn-

Cal! Soil's, m " " "■"""' ''" ^ - ««*»»' 1« Cal. 2S0, 74 t>«.
42 (Ceil Sup., Jan. 23, 1908), 93 849 ; Cohen v. La Canada Co., 142 Cal.
Pac. 1021. 439, 76 Pac. 47.

S 356 DEFINITE BODY Q^ WATER. 541

stream within the above niley then rights in such surplus may be
separately considered. They will not be governed by a previous
partition decree mentioning only the surface stream; such appor-
tionment of the surface stream does not per se carry with it a
similar apportionment of such surplus sub-flow, which hence re-
mained unapportioned. Rights in such surplus sub-flow are to be '
separately considered under the law of riparian rights (all the
claimants being riparian proprietors), and such surplus must be
taken subject to the rules thereof, as an unapportioned part of
the stream itself. No well or sub-surface dam in the banks or in
the dry stretch must take more than the reasonable riparian share
for riparian use of the taker (saving always that the taking does not
injure the surface stream where it appears. below on the surface)
but such share it may rightfully take. Precision in the amount
of damage to the surface stream by the wells will be impossible, but
if substantial at all, the eourt must make a definite ^ding upon the
amount necessary to the support of the surface stream, and there-
by also of the remaining surplus underflow (if any). Such sur-
plus is then to be apportioned by taking the whole of such surplus
and dividing it by fractions thereof to each claimant under the
rules of riparian rights, without distinguishing particular dams or
wells by which it is being aoeuxnulated.^ This case thus recognizes
riparian rights in the sub-flow an a separate thing, so far as there
is a surplus thereof unnecessary to the support of the surface
stream. The tr^tment would seem to be adaptable also to the law
of appropriation in the ease of priority in favor of wells by the
side of a stream flowing over public land.

§ 356. Percolations Tributary to Watereoiir8ei.--A third class
of underground water similar to the sub-flow, but distinguishable
from it, consists of percolations tributary to a watercourse instead
of resting beneath it. While the sub-flow is a component of the
stream resting beneath the bed, the tributary percolations form a
comi>onent though they have not yet reached the actual channel.

On the surface a stream is traced back so far as proof shows
approaching water to be tributary, such approaching water being
a component part of the watercourse. The watercourse extends

M Chief Jiistiee Beatty, in a con- gard to the effeet of the wells therein

cuning opinion, thought the dry opon the surface stream, where it ap-

streteh should be regarded as a dis- pears on the surface in the lower part

tinct underground stream, without re- of the canyon.

542

UNDEBaBOUNB WATEB.

§ 356

back into lakes, creeks, springs that are its siirf ace source or
tributaries. Further back than that the state of geological knowl-
edge did not, until comparatively recent years, furnish proof;
and consequently the law, which can never advance beyond the
proof, stopped also. The spring or other surface source was re-
garded as the vanishing point of the watercourse, and the percola-
tions underground were an unknown quantity, too precarious in
their movements in the then state of knowledge of the subject to be
taken into consideration, and siich percolations were treated under
the rule of ownership of the soil in which they were found, as later
set forth. The leading cases were Acton v. Blundell and Ghasemore
v. Richards, in the former percolations tributary to springs, in the
latter percolations tributary to the River Wandle. Such, also, were
most of the earlier California cases dealing with percolating
water.^ In all these cases the percolations were treated as a sepa-
rate matter from the spring or watercourse and subject to a dif-
ferent rule of ownership.*^

But more recent scientific investigation has dispelled most of
this mystery concerning the movement of underground water.
It is demonstrated fairly well now that there is an under-
ground circulation near the surface (technically, the *'Vado8e"
circulation),*^ beginning with rainwaters on the summit of a
watershed and substantially making its way underground to
•lower levels until it finally reaches the sea, finding its way by
percolation to a large extent into the channels of some watercourse
in this downward travel. Taken too literally, this would make
all percolations tributary to watercourses, but for the purpose of
any individual case that inference is too remote, and the question
is instead one of proximateness on the proof. If, on the proof,
the percolations are shown to be tributary to the spring or water-
course in a material degree, the loss of them causing a substantial

« The first, Hanson v. McCue, 42
Cal. 303, 10 Am. Rep. 299, dealt with
pereolatioDB tributary to a epring;
Huston V. Leach, 53 Cal. 262, dealt
with those tributary to springs which
were in turn tributary to a creek, and
the court said that an injunction
' * from in any manner interfering with
the waters of said springs, so as to
prevent the same, or any part thereof,
from floMng into Lytle Creek ....
does not restrain him from availing
himself of percolations, even though

he might thereby diminish the water
which would otherwise issue from the
springs. ' ' Cross v. Kitts, 69 CaL 217,
58 Am. St. Bep. 558, 10 Pae. 409,
dealt with percolations tributary to a
Btream; likewise Oould v. Eaton, 111
Cal. 639, 44 Pac. 319.

40 See, also, Meyer v. Taeoma etc.
Co., 8 Wash. 144, 35 Pac. 601;
Leonard v. Shatzer, 11 Mont. 422, 28
Pac. 457, among other cases.

47 See Posepny on Ore Deposits.

S 356

DEFINITE BODY OF WATER.

543

diminution of the spring or watercourse, they are now treated as a
component part of the watercourse, and follow rights on the water-
course, and rights therein are not regarded as underground rights
separate therefrom.'*®

It is not necessary to create any new rule of percolating water
to accomplish this result; it is a question of fact, not of law.
The California court has considered Katz v. Walkinshaw as pro-
viding a new rule of law to this effect. But Katz v. Walkinshaw
dealt only with diffused percolating water not on the facts part
of the flow, surface or subterranean, of any stream ; and the result
here in question has been arrived at in numerous other jurisdictions
without any belief that it involved a new rule of law, but only a
more extended proof of facts. For example, cases from other ju-
risdictions here cited, holding that percolations tributary to a
stream are a part thereof, and cannot be diverted from prior
claimants on the stream.'*® In these cases the rule has been applied
that the approaching percolations feeding the stream are a part of
it.

In California this result was reached in Hale v. McLea.^ The
case was treated as thoiigh a surface stream was involved, and the
diversion of the percolations held unlawful. And in Southern
Pac. Co. V. Dufour*^^ Mr. Justice McParland (dissenting) said:
''It may be remarked that a watercourse is none the less a water-
course because it has its source in a spring fed by 'percolating'
w^aters.*'

48 <<It is usual to speak of the ex-
traction of this water from the ground
as a development of a hitherto unused
supply. But it is not jet demon-
strated that the process is not in fact,
for the most part, an exhaustion of
the underground sources from which
the surface streams and other sup-
plies previously used have been fed
and supported. In some cases this has
been proven hj the event. The dan-
ger of exhaustion in this way threat-
ens surface iftreams as well as under-
ground percolations and reservoirs."
Shaw, J., in Katz v. Walkinshaw, 141
Cal. 116, 99 Am. St. Bep. 35, 70 Pac.
663, 74 Pac. 766, 64 L. E. A. 236.

' ' It may be remarked that a water-
eounie is none the less' a watercourse
because it has its source in a spring
fed by 'percolating' waters." Mc-
F^rland, J., in Southern Pac. Go. v.

Dufour, 95 Gal. 616, 30 I^ac. 783, 19
L. B. A. 92.

40 In Colorado, Ogilvy Irr. C!o., v.
Insinger, 19 Golo. App. 380, 75 Pac.
598; Glark v. Ashley, 34 Golo. 285, 82
Pac. 588 J Wilson v. Ward, 26 Colo.
39, 56 Pac. 573. (It has even been
presumed in Colorado that the percola-
tions were a part of the watercourse.
Platte etc. Co. v. Buckers etc. Co.,
25 Golo. 77, 53 Pac. 334.) lnjfevada.
Strait V. Brown, 16 Nev. 317, 40 Am.
Bep. 497. In Idaho, Malad etc. Go.
V. Campbell, 2 Idaho, 411, 18 Pac.
52. In Utah, Herriman etc. Go. v.
Butterfield etc. Co., 19 Utah, 453, 57
Pac. 537, 51 L. B. A. 930. See, also.
Fleming v. Davis, 37 Tex, 173; Cop-
per etc, Co. V. Wabash, 114 Fed. 991.

60 53 Cal. 578.

51 95 Cal. 616, 30 Pac. 783, 19 U
B. A. 92.

544

UNDEBGEOUND WATER.

9 356

Nevertheless, until Katz v. Walkinshaw, most of the California
cases wfire against this. Sinee that ease, however, percolations
tributary to a spring,^^ or a diffused movement of ground water
down the sides of the watershed toward the bed of a stream,*^
have been held a component part of the spring or stream, and as
following the law of ownership on those surface bodies.^

In one case^^ Mr. Justice Lorigan speaks to the same effect
(though holding that the facts did not bring the case within the
principle) of waters which but for their interception would have
reached a stream in Snover Canyon, or which would have reached
or supported springs in question in the case; waters which would
follow the natural watershed of the canyon and have trended down
in the canyon by way of the springs or otherwise. Saying that
such waters were governed by a rule different from ''developed"
water that would not reach or be a part of the stream, being lost ;
but belonged to the spring or stream claimant to the same extent
as the surface water therein.

The result is that approaching percolations feeding a surface
body of water and essential to its maintenance belong to the owners
of that surface body, as in the case of the sub-flow, and cannot be
taken from them otherwise than the stream itself could.

It remains in this connection to refer to two principles that re-,
ceive separate consideration. One is that seepage from artificial
collections of water such as reservoirs or ditches is a different mat-
ter from this, involving the law of artificial waters and not that
of natural waters , which we have already considered.^ The other
is that there is a question how far the purpose or motive of the
party complained of will be material in the diversion of these
components (the sub-flow and the tributary percolations) from
the stream of which they are parts, which we shall consider later.^

It is also to be noted that all the decisions, as herein cited,
protect the watercourse against hostile percolation. In a case now
on appeal in the supreme court of California respondent claims

68 Cohen v. La Canada etc. Co., 142
Cal. 437, 76 Pac. 47.

68 McClintock v. Hudson, 141 Cal.
275, 74 Pac. 849; Craig v. Crafton
Water Co., 141 Cal. 178, 74 Pac 762 ;
Monteeito Co. v. Santa Barbara, 144
Cal. 578, 77 Pac. 1113.

M Perhaps Monteeito etc. Co. v.
Santa Barbara ia to the same effect.

thongh the opinion did not discrimi-
nate closely between tribtitary percola-
tions approaching the stream and the
sub-flow resting beneath it.

66 Cohen v. La Canada Water Co.,
151 Cal. 680, 91 Pac. 584.

60 AnU, sees. 156-158.

67 Infra, sec. 373 et seq.

§ 357 DEFINITE BODY OP WATEE. 545

the right, though a non-riparian owner, to reverse this and protect
percolation against the watercourse; that is, to enjoin the diversion
of a watercourse because it would deprive him of percolations.***
If the court holds as he requests, it will be the first case, in any
court, so holding. ,

§ 357. Underground Lakes or Artesian Belts. — In the case of
Katz V. Walkinshaw there were peculiar facts which would distin-
guish the case from those governing diffused ground water, and
bring it into the class of a definite collection of water as a possible
fourth variation. On its facts it dealt with a case where there was
an underground catchment basin composed of pebbles, loose and
porous material, in which the water was proved to have gathered as
in an underground reservoir.**® This same point is again noticed in
a later case.^ '^In Eatz v. Walkinshaw the condition presented was
that of a well-defined underground catchment basin, a subterranean
lake, so to speak, loosely filled with gravels." There was an arte-
sian belt, from which the wells overflowed on the surface. The
existence of a similar reservoir was previously recognized in Los
Angeles v. Pomeroy,*^ where it is described as follows: **The land
is found to be' saturated with water to within a few feet of the
surface. It is proposed to construct a sub-surface dam at the
lower end of the tract. A subrsurf ace dam, of course, would not
have the effect of flooding the surface permanently, but it would
permanently raise the place of saturation. This being done, it is
next {proposed to tap this heavi^ saturated bed of sand and gravel
by means of a tunnel connected with lateral galleries through which
the water will be drained off and conducted to supply the pipes.
In other words, the land is to be* used as a reservoir, such as es-
sentially it is, and none the less so because the water does not rise
and stand above the surface. The evidence in the case shows
that from one-fifth to one-third of the entire bulk of the material
filling the valley below the plane of saturation is water. The land
in its natural state, therefore, is a reservoir^ and a sub-surface dam
is to be constructed in order to make it better serve the purposes of a
reservoir." And held that such a reservoir was a well-defined en-

■

58 Miller v. Bay Cities Water Co., ^ Montecito etc. Co. v. Santa Bar-

CaL Sup., now pending. baia, 144 Cal. 578, at 584, 77 Pac.

60 141 Cal., at page 126, 99 Am. St. 1113.

Bep. 35, 70 Pac. 663, 74 Pac. 766, 64 6i 124 Cal. 597, at page 616, 57

L. B. A. 236. Pac. 585.
Wftter Rights — 85

9 357

cases '' 'n ej^i'^'"^ '*^°'*''' proceed-

^ ., - ^ ^ irA^'^'^ Vii/^^*haw that rights in

fol

*^^ '"^,gtio^ ^^^'^ J formation of the country is

^'^^^*^^i^/esJ i^^^^^ g^o^^ ^** almost all of the valleys

^^* T^ ^^p boriog^ ^^/tf found abundantly in percolation

( ^^^^'^"^'^^ pla^^ irA^'* '^^ ^^ basins, at the bottoms of which an-

^^ ^ rif^^y ^^^ ^^^'thc^ streams or lakes. Gravel, boulders,

fh^re w'^'^ ^^ driftwood have been found near the

fj^^^ ^rm^r^^'^'' t'de lerelf showing that thdlse sunken stream-beds

^cf ^^r ^l^^cDongb to discharge water by gravity into the sea.

gO0^^ ^m^^ ^ ajxd basins are bordered by high mountains, upon

^r^ ^^^' faUs the more abundant rain. The deep canyons or

fftf^^ 't^^ C0UP5C oi ages have become filled with the washings

^l>ij^ ^ i^ jjioun tains, largdy composed of sand and gravel, and

.^ €^^ porous material the water now running down from the

Mfi '9^^T tf rapi^^y sinkfe and slowly moves through the lands by

VO^^ ^i^^ ^^ usually termed percolation, forming what are prac-

^^^ t^^^^^de'^^"^^ reservoirs. It is the water thus held or stored

tic*^? tjo^ being taken to eke out the supply from the natural

tb»* ** In almost every instance of a water supply from the

^*^ ned percolating water, the location of the well or tunnel by

^-^^ it is collected is in one of these ancient canyons or lake

^ 'ns. Outside of these there is no percolating water in sufficient

uantity to be of much importance in the development of the

country or of sufficient value to cause serious litigation."

If that is the result, the rule of Katz v. WalMnshaw would be
0iert*Jy the recognition of subterranean bodies similar to lakes or
ponds, and merely an extension of the principle on which definite
underground streams have long been recognized. It would be far
from establishing a new rule applying to percolating ground water
in general. But the court, in deciding cases concerning percola-
tions tributary to watercourses, has held the rule of Katz v.
Walkinshaw applicable, though no definite underground reservoir
or artesian belt was shown, saying: It is not necessary for the
plaintiff **to show the particular subterranean conditions .which
were disturbed, "•^ and Mr. Justice Temple's opinion in Katz

«2 At page 126.

«3 Cohen v. La Canada W. Co., 142 Oal. 437, 76 Pac. 47.

9 357

DEFINITE BODY OF WATER.

547

V. Walkinshaw makes no reference to the point, and a n\ore
recent case®* ignored it in a case where mere diffused percolat-
ing water unconnected with a stream or other collection was held
to be alone involved. We conclude that the existence of an
artesian belt, catchment basin, underground reservoir, or quasi-
subterranean lake does not distinguish a case from one of merely
diffused percolating water considered in the next chapter.^

In Kansas there is a statute providing that subterranean water
standing in subterranean sheets or lakes may be appropriated,
as well as subterranean streams.^ Concerning definite artesian
basins, South Dakota also has an extensive statutory system gov-
erning rights therein:®^ Colorado has a statute appointing a
board of officers to supervise well-boring on the plains.^ In Cali-
fornia there are statutes governing use of water from artesian
wells so as to prevent waste.*^ Concerning the statute of 1907 to
this effect it has been held : ''^ *'This act, therefore, relates to waters,
the right to the use of which is common to a large portion of the
community, and affects the general public right. Legislation in
relation thereto affectrthe public welfare, and the right to legis-
late in regard to its use and conservation is referable to the police
power of the State. "''^ A Nevada statute provided a bounty for
those who sank artesian Vells.*^^

w Cohen v. La Canada Water Co.,
151 Cal. 680, 91 Pac. 584.

6S For a case where an artesian belt
or underground reservoir existed, as
in Katz v. Walkinshaw, see Eriekson
V. Crookston etc. Co., 100 Minn. 481,
111 N. W. 391, 8 L. R. A., N. 8.,
1250; Pence V. Carney (W. Va.), 52
8. E. 702; Barclay v. Abraham
(Iowa), 96 N. W. 1080, semhle.

oe Kan. Oen. Stats. 1901, sec. 3523,
quoted infra, Part VII, Statutes.

•7 8. Dak. 'Rev. Codes, 1905, sec.
2680etBfliq.

68 Laws 1870, p. 11.

08 See California Statutes, Part
VII, infra,

TO Ex parte Elam (Cal. App.), 91*
Pac. 811.

71 For a decision holding such a
statute unconstitutional on the ground
of the English rule of percolating
water, see Huber t. Merkel, 117 Wis.
355, 98 Am. St. Rep. 933, 94 N. W.
354, 62 b. R. A. 589.

72 State V. Horton, 21 Nev. 300.

546 UNDEBGBOUNI) WATEB. 9 357

tity that could be taken as a whole in eminent domain proceed-
ings. There is a statement in Katz v. Walkin^haw that rights in
percolating water will be limited to waters of that description
only, saying:**

"The geological history and formation of the country is
peculiar. Deep borings have shown that almost all of the valleys
and other places where water* is found abundantly in percolation
were formerly deep canyons or basins, at the bottoms of which an-
ciently there were surface streams or lakes. Gravel, boulders,
and occasionally pieces of driftwood have been found near the
coast far below tide level, showing that thdlse sunken stream-beds
were once high enough to discharge water by gravity into the sea.
These valleys and basins are bordered by high mountains, upon
which there falls the more abundant rain. The deep canyons or
basins in course of ages have become filled with the washings
from the mountains, largdy composed of sand and gravel, and
into this porous material the water now running down from the
mountains rapidly sinkfii and slowly moves through the lands by
the process usually termed percolation, forming what are prac-
tically underground reservoirs. It is the water thus held or stored
that is now being taken to eke out the supply from the natural
streams. In almost every instance of a water supply from the
so-called percolating water, the location of the well or tunnel by
which it is collected is in one of these ancient canyons or lake
basins. Outside of these there is no percolating water in sufficient
quantity to be of much importance in the development of the
country or of sufficient value to cause serious litigation."

If that is the result, the rule of Eatz v. WalMnshaw would be
men^ly the recognition of subterranean bodies similar to lakes or
ponds, and merely an extension of the principle on which definite
underground streams have long been recognized. It would be far
from establishing a new rule applying to percolating ground water
in general. But the court, in deciding cases concerning percola-
tions tributary to watercourses, has held the rule of Katz v.
Walkinshaw applicable, though no definite underground reservoir
or artesian belt was shown, saying: It is not necessary for the
plaintiff ''to show the particular subterranean conditions .which
were disturbed,"^ and Mr. Justice Temple's opinion in Katz

92 At page 126.

«3 Cohen v. La OanadaW. Co., 142 Oal. 437, 76 Pac. 47.

9 357

DEFINITE BODY OF WATEB.

547

V. Walkinshaw makes no reference to the point, and a n\ore
recent case®* ignored it in a case where mere diflfused percolat-
ing water unconnected with a stream or other collection was held
to be alone involved. We conclude that the existence of an
artesian belt, catchment basin, underground reservoir, or quasi-
subterranean lake does not distinguish a case from one of merely
diffused percolating 'water considered in the next chapter.^

In Kansas there is a statute providing that subterranean water
standing in subterranean sheets or lakes may be appropriated,
as well as subterranean streams.^ Concerning definite artesian
basins, South Dakota also has an extensive statutory system gov-
erning rights therein:^ Colorado has a statute appointing a
board of officers to supervise well-boring on the plains.^ In Cali-
fornia there are statutes governing use of water from artesian
wells so as to prevent waste.*^ Concerning the statute of 1907 to
this effect it has been held : ''^ **This act, therefore, relates to waters,
the right to the use of which is common to a large portion of the
community, and affects the general public right. Legislation in
relation thereto affectrthe public welfare, and the right to legis-
late in regard to its use and conservation is referable to the police
power of the State. "^^ A Nevada statute provided a bounty for
those who sank artesian Vells.'^^

w Cohen v. La Canada Water Co.,
151 CaL 680, 91 Pae. 584.

66 For a case where an artesian belt
or underground reservoir existed, as
in Katz v. Walkinshaw, see Eriekson
V. Crookston etc. Co., 100 Minn. 481,
111 N. W. 391, 8 L. B. A., N. S.,
1250; Pence v. Carney (W. Va.), 52
S. E. 702; Barclay ▼. Abraham
(Iowa), 96 N. W. 1080, semble,

m Kan. Gen. Btats. 1901, sec. 3523,
quoted infra, Part VII, Statutes.

«7 S. Dak. 'Bev. Codes, 1905, sec.
2680 et Btiq.

68 Laws 1870, p. 11.

08 See California Statutes, Part
Vtl, infra.

70 Ex parte Elam (Cal. App.), 91*
Pac. 811.

71 For a decision holding such a
statute unconstitutional on the ground
of the English rule of percolating
water, see Huber y. Merkel, 117 Wis.
355, 98 Am. St. Bep. 933, 94 N. W.
354, 62 b. B. A. 589.

72 State V. Horton, 21 Nev. 300.

546 UNDEBGBOUND WATBB. § 357

tity that could be taken as a whole in eminent domain proceed-
ings. There is a statement in Eatz v. Walkiu^haw that rights in
percolating water will be limited to waters of that description
only, saying:®

''The geological history and formation of the country is
peculiar. Deep borings have shown that almost all of the valleys
and other places where water is found abundantly in percolation
were formerly deep canyons or basins, at the bottoms of which an-
ciently there were surface streams or lakes. Gravel, boulders,
and occasionally pieces of driftwood have been found near the
coast far below tide level, showing that thdgie sunken stream-beds
were once high enough to discharge water by gravity into the sea.
These valleys and basins are bordered by high mountains, upon
which there falls the more abundant rain. The deep canyons or
basins in course of ages have become filled with the washings
from the mountains, largdy composed of sand and gravel, -and
into this porous material the water now running down from the
mountains rapidly sinld^ and slowly moves through the lands by
the process usually termed percolation, forming what are prac-
tically underground reservoirs. It is the water thus held or stored
that is now being taken to eke out the supply from the natural
streams. In almost every instance of a water supply from the
so-called percolating water, the location of the well or tunnel by
which it is collected is in one of these ancient canyons or lake
basins. Outside of these there is no percolating water in sufficient
quantity to be of much importance in the development of the
country or of sufficient value to cause serious litigation."

If that is the result, the rule of Katz v. Walkinshaw would be
merely the recognition of subterranean bodies similar to lakes or
ponds, and merely an extension of the principle on which definite
underground streams have long been recognized. It would be far
from establishing a new rule applying to percolating ground water
in general. But the court, in deciding cases concerning percola-
tions tributary to watercourses, has held the rule of Katz v.
Walkinshaw applicable, though no definite underground reservoir
or artesian belt was shown, saying: It is not necessary for the
plaintifi^ *'to show the particular subterranean conditions .which
were disturbed,"®^ and Mr. Justice Temple's opinion in Eatz

62 At page 126.

68 Cohen v. La Oanada'W. Co., 142 Oal. 437, 76 Pac. 47.

§ 357

DEFINITE BODY OF WATEE.

547

Y. Walkinshaw makes no reference to the point, and a n\ore
recent case®* ignored it in a case where mere diflfnsed percolat-
ing water unconnected with a stream or other collection was held
to be alone involved. We conclude that the existence of an
artesian belt, catchment basin, underground reservoir, or quasi-
subterranean lake does not distinguish a case from one of merely
diffused percolating -water considered in the next chapter.^

In Kansas there is a statute providing that subterranean water
standing in subterranean sheets or lakes may be appropriated,
as well as subterranean streams.^ Concerning definite artesian
basins, South Dakota also has an extensive statutory system gov-
erning rights therein:^ Colorado has a statute appointing a
board of officers to supervise well-boring on the plains.^ In Cali-
fornia there are statutes governing use of water from artesian
wells so as to prevent waste * Concerning the statute of 1907 to
this effect it has been held : ^^ "This act, therefore, relates to waters,
the right to the use of which is common to a large portion of the
community, and affects the general public right. Legislation in
relation thereto affects" the public welfare, and the right to legis-
late in regard to its use and conservation is referable to the police
power of the State. ''"^^ A Nevada statute provided a bounty for
those who sank artesian Vells.'^^

w Cohen v. La CaDada Water Co.,
151 Cal. 680, 91 Pac. 584.

6S For a ease where an artesian belt
or underground reservoir existed, as
in Katz v. Walkinshaw, see Erickson
r. Crookston etc. Co., 100 Minn. 481,
111 N. W. 391, 8 L. B. A., N. S.,
1250; Pence v. Carney (W. Va.), 52
S. E. 702; Barclay v. Abraham
(Iowa), 96 N. W. 1080, senible.

w Kan. Gen. Stats. 1901, sec. 3523,
quoted infra, Part VII, Statutes.

«7 8. Dak. 'Rev. Codes, 1905, sec.
2680 et 8^.

68 Laws 1870, p. 11.

00 See California Statutes, Part
VII, infra.

TO Ex parte Ehim (Cal. App.), 91*
Pac. 811.

71 For a decision holding such a
statute unconstitutional on the ground
of the English rule of percolating
water, see Huber v. Merkel, 117 Wis.
355, 98 Am. St. Rep. 983, 94 N. W.
354, 62 h. R. A. 589.

72 State v. Horton, 21 Nev. 300.

546 UNDEBGBOUND WATBB. § 357

"The geological history and formation of the country is
peculiar. Deep borings have shown that almost all of the valleys
and other places where water is found abundantly in percolation
were formerly deep canyons or basins, at the bottoms of which an-
ciently there were surface streams or lakes. Gravel, boulders,
and occasionally pieces of driftwood have been found near the
coast far below tide level, showing that thdgie sunken stream-beds
were once high enough to discharge water by gravity into the sea.
These valleys and basins are bordered by high mountains, upon
which there falls the more abundant rain. The deep canyons or
basins in course of ages have become filled with the washings
from the mountains, largdy composed of sand and gravel, and
into this porous material the water now running down from the
mountains rapidly sinld^ and slowly moves through the lands by
the process usually termed percolation, forming what are prac-
tically underground reservoirs. It is the water thus held or stored
that is now being taken to eke out the supply from the natural
streams. In almost every instance of a water supply from the
so-called percolating water, the location of the well or tunnel by
which it is collected is in one of these ancient canyons or lake
basins. Outside of these there is no percolating water in sufficient
quantity to be of much importance in the development of the
country or of sufficient value to cause serious litigation."

If that is the result, the rule of Katz v. Walkinshaw would be
merely the recognition of subterranean bodies similar to lakes or
ponds, and merely an extension of the principle on which definite
underground streams have long been recognized. It would be far
from establishing a new rule applying to percolating ground water
in general. But the court, in deciding cases concerning percola-
tions tributary to watercourses, has held the rule of Katz v.
Walkinshaw applicable, though no definite underground reservoir
or artesian belt was shown, saying: It is not necessary for the
plaintiff "to show the particular subterranean conditions .which
were disturbed,"® and Mr. Justice Temple's opinion in Eatz

«2 At page 126.

«s Cohen v. La Oanadft'W. Co., 142 Oal. 437, 76 Pac. 47.

§ 357

DEFINITE BODY OP WATEB.

547

V. Walkinshaw makes no reference to the point, and a more
recent case^ ignored it in a case where mere diflfnsed percolat-
ing water unconnected with a stream or other collection was held
to be alone involved. We conclude that the existence of an
artesian belt, catchment basin, underground reservoir, or quasi-
subterranean lake does not distinguish a case from one of merely
diffused percolating -water considered in the next chapter.^

In Kansas there is a statute providing that subterranean water
standing in subterranean sheets or lakes may be appropriated,
as well as subterranean streams.^ Concerning definite artesian
basins, South Dakota also has an extensive statutory system gov-
erning rights therein;^ Colorado has a statute appointing a
board of officers to supervise well-boring on the plains.®* In Cali-
fornia there are statutes governing use of water from artesian
wells so as to prevent waste.*® Concerning the statute of 1907 to
this effect it has been held : ''^ "This act, therefore, relates to waters,
the right to the use of which is common to a large portion of the
community, and affects the general public right. Legislation in
relation thereto affects" the public welfare, and the right to legis-
late in regard to its use and conservation is referable to the police
power of the State. " "^^ A Nevada statute provided a bounty for
those who sank artesian Vells.''^

«* Cohen v. La Canada Water Co.,
151 Cal. 680, 91 Pae. 584.

00 For a ease where an artesian belt
or underground reservoir existed, as
in Katz v. Walkinshaw, see Eriekson
V. Crookston etc. Co., 100 Minn. 481,
111 N. W. 391, 8 L. R. A., N. S.,
1250; Pence v. Carney (W. Va.), 52
S. E. 702; Barclay v. Abraham
(Iowa), 96 N. W. 1080, semble.

66 Kan. Gen. Stats. 1901, see. 3523,
quoted infra, Part YII, Statutes.

67 S. Dak. 'Rev. Codes, 1905, sec.
2680 et Btiq.

68 Laws 1870, p. 11.

60 See California Statutes, Part
VII, infra,

70 Ex parte Elam (Cal. App.), 91*
Pac. 811.

71 For a decision holding such a
statute unconstitutional on the ground
of the English rule of percolating
water, see Huber v. Merkel, 117 Wis.
355, 98 Am. St. Rep. 933, 94 N. W.
354, 62 b. R. A. 589.

72 State V. Horton, 21 Nev. 300.

554 UNDERGBOUND WATEB. § 362

of view will appear more particularly in the following comparison
of passages in the two opinions.

§ 362. The State of the Authorities.— As viewed by Mr. Jus-
tice Temple, who examines chiefly the authorities outside of Cali-
fornia, his contention is in accord with the best considered cases
and opinions in all American jurisdictions. He is merely follow-
ing the best authority, he declares. To quote :

''The doctrine of reasonable use has been recognized in many
cases in the United States, impliedly in most, as I stated, but
expressly in some.'' ....** In a majority of the cases which are
claimed as authority against the rule of reasonable use the court
takes pains to note that the act which disturbs the percolating water
was in using the land in the usual manner, and without the intent
of injuring a neighbor." .... ''Whatever the English rule may
be, the American cases either recognize the application of the rule
of 'Sic utere tuo' to the subject, or they are cases in which it was
wholly unnecessary to consider that subject. Such are the Cali-
fornia cases. "^*

He discusses Chasemore v. Richards as follows: "It was first de-
cided in exchequer chambers in favor of the defendant, Mr. Jus-
tice Coleridge dissenting.^ The dissenting opinion presents the
doctrine of reasonable use. The case was taken to the House of
Lords.^ There the case was most elaborately and ably argued,
and the view in regard to reasonable use was fully presented. A
case was made, and the opinion of the judges was solicited. The
judges held unanimously for the defendant, sustaining fully the
cujus est sohim doctrine, without qualification, and this was af-
firmed by the House. The matter mainly discussed, however, was
the plaintiff's claim that he had a prescriptive right to the water.
The court held that riparian rights are not derived by prescrip-
tion, but the right to the water is ex jure, naturtie. This settled
the main contention, and little more was said, except to refer to

the cases in which the rights to percolating waters are discussed.
Lord Wensleydale, however, who had doubts, pronounced an opin-
ion which seems to me in accord with the views I am trying to ex-
press."

21 The same view of the authori- ^a' Ames, in 18 Harv. Law Eev. 415,
.. •XI- '-n iin*i^i.i and other text-writeTs.

ties 18 taken m Pomeroy's Equitable ^2 2 Hurl & N 168

Remedies and in the article by James 23 7 H. L. Cas. 349.

§ 362a PERCOLATING WATER. 555

The climatic conditions in Southern California, though touched
upon, are not insisted on, and there is no statement whatever that
an admitted rule of the common law is departed from on that ac-
count. He does not take the stand that he is laying down a new
rule. The only thing new, if anything, is the application of the
rule. '*It does not require a reversal of the rule laid down in
Acton V. Blundell, which has been so often cited and indorsed,
but only a holding that in certain cases there should be added the
element of reasonable use, having reference both to the land belong-
ing to the party who has disturbed the movement of percolating
water and to adjoining land, and to land sensibly affected by such
acts."

§ 362a. On the other hand, Mr. Justice Shaw; discussing chiefly
the California decision, says: ''The decisions have not been har-
monious, and in many of them what is said on this subject is mere
dictum. A brief review of the cases will demonstrate this to be
true.'* And he says: The first case on the subject, Hanson v. Mc-
Cue, involved only the use of leakage from a ditch and did not in-
volve the law of natural waters at all, but of artificial water-
courses.^ Huston V. Leach turned upon a question of construc-
tion of words ; Hale v. McLea, on the law of definite underground
streams; Cross v. Eitts denied the right to divert tributary per-
colations, tributary to a granted artificial stream, and is really in
favor of the contention here; Painter v. Pasadena Co. enforced a
grant between parties and privies ; Southern Pacific Co. v. Duf our is
considered probably contra to the rule contended for and not dis-
tinguishable ; Gk)uld V. Eaton likewise ; Los Angeles v. Pomeroy did
not consider the question on appeal because it was not material on
appeal in that case; Yineland v. Azusa Co. dealt only with water
that was part of a definite stream; Bartlett v. O'Connor decided
in favor of the contention here. And concludes: *'In view of this
conflicting and uncertain condition of the authorities^ it cannot be
successfully claimed that the doctrine of absolute ownership is
well established in this State," though admitting that in all these
cases, even those distinguished as to actual decision, it appeared
consistently as dictum. The justice takes the ground that the old
rule is entirely abrogated, and was never a part of our common law
at aU.

24 Supra, Part T, c. VIT.

956 UNDEBGBOUND WATER. § 363

''The idea that the doctrine contended for by the defendant is a
part of the common law adopted by our statute, and beyond the
power of the court to change or modify, is founded upon a mis-
conception of the extent to which the common law is adopted by
such statutory provisions, and a failure to observe some of the rules
and principles of the common law itself." .... **The water it-
self, owing to the tremendous need, the valuable results from its
application, and the constant effort to plant more orchards and
vineyards to share in the great profits realized .therefVom, has be-
come very valuable. In some instances it has been known to sell
at the rate of $50,000 for a stream flowing at the rate of one cubic
foot per second." .... **An ordinary difference in the condi-
tions would scarcely justify the refusal to adopt a rule of the com-
mon law or one which has been so generally supposed to exist;
but where the differences are so radical as in this case, and would
tend to cause so great a subversion of justice, a different rule is
imperative."

To conclude, Mr. Justice Temple merely modified the application
of the old rule. Mr. Justice Shaw considers it abrogated and an
entirely new one substituted.

§ 383. The Bule Contended for.— The rule contended for by
Mr. Justice Temple is this : The rule of Acton v. Blundell remains
as the substructure. The landowner may do what he will with his
percolating water (but with this modification) so long as, if he
damages another, he does it in the reasonable use of his own land.
But where this hostile tidying is for a purpose not in the reason-
able use of the land, it is wrongful so fai* (but only so far) bb it
damages other landowners in the use of their own land. The
principle Mr. Justice Temple contends for is shown by the follow-
ing passages: ''He may cultivate his land, and for that purpose
ordinarily may drain it, and plow it or clear it from forests, al-
though all these operations may affect the flow of water to the
lower proprietor, both in the watercourse and by percolation."
. . . . "The peculiar nature of the property which enables one to
take it by drainage does not justify the taking, save in the usual
and reasonable use of his own land — in other words, for the proper
use and betterment of his own property."

He is, then, recognizing the old rule as in force so long as com-
plainant's use of his land is not interfered with, or if the purpose

§ 364 PERCOLATING WATER. 567

of taking is for the reasonable use of the land on which taken. It
is not an ignoring of the old rule, to replace it with the rules gov-
erning watercourses, though, he says, there are analogous results
in some ways, sua to which he says : ''And it seems to me a great mis-
take is made in supposing that, if the plenary property of a land-
owner in percolating water is denied, the alternative is to apply
to such water all the rules which apply to the use of water flowing
in watercourses having defined channels.".

In short, this view is : The old rule remains as the substructure,
and one may do what he will with the water percolating in his
land. But now subject to the following modification : Only if com-
plainant's use of his own land is not interfered with, or if, such
interference existing, the purpose of taking is nevertheless for the
reasonable use of the land on which taken.

§ 364. Same. — Justice Shaw concludes his opinion, ''with re-
gard to the doctrine of reasonable use of percolating waters, we
adhere to the views expressed in the former opinion." The most
general form in which it appears in the opinion of Mr. Justice
Shaw is as follows: "It limits the right of others to such amount
of water as may be necessary for some useful purpose in connection
with the land for which it is taken. If, as is claimed in the argu-
ment, such water-bearing land is generally worthless except for
the water which it contains, then the quantity that could be used
on the land would be nominal, and injunctions could not be ob-
tained, or substantial damages awarded, against those who carry
it to distant lands."

He then contends that the common law is entirely abrogated be-
cause unsuited to conditions, and more particularly, says: Where
neither party seeks use on his own land, but both for distant lands,
the law of appropriation as it arose on the public lands in the early
days, and the law of prescriptive titles, shall apply in a general
way (not adverting to the rule asserted in Cave v. Tyler that ap-
propriation under the California doctrine was applied only to pub-
lic lands) .^** Where one party is seeking use on his own land and
another on distant lands, priority in time of use by the one seek-
ing use on his own land will give him the paramount right, though
only to the quantity necessary for his use, the other (called the
appropriator) taking the surplus; whereas it is considered best

24a Supra, sec. 79 et seq.

5o8 UNDBBGBOUND WATER. § 364

not to state a positive rule concerning priority in time of use by
the one seeking use on distant land. Where two parties both
seek use on their own land, they shall share it between them in fair
and just proportion, unless, possibly, priority of time of use shall
have some hearing here, too. As to questions of procedure, prelim-
inary injunctions should in any case be granted only as a last re-
sort. Standing by during great expenditure to prepare works for
public use should bar an injunction where injury was to have
been anticipated from such works. Non-use also should bar an
injunction, though not, perhaps, a decree settling complainant's
right to use the percolating water when necessary. In stating
these principles, the learned justice says: **In view of the novelty
of the doctrine and the scopie of argument, it is not out of place
to indicate to some extent how it should be done, although other-
wise it would not be necessary to the decision of the case." Con-
cerning them Mr. Justice Angellotti said: "I concur in the judg-
ment and in the vi^ws expressed in the opinion of Mr. Justice
Temple on the former decision of this case as to the application
of the doctrine of reasonable use to percolating waters. When
properly applied, it appears clear to me that such doctrine will
serve to protect the rights of the owner of realty, rather than
impair thein. I also concur generally in the views expressed by
Mr. Justice Shaw in the majority opinion as to the same subject
matter, but several important questions are discussed that are
not necessary to a decision of this case, and as to which the opinion
herein cannot hereafter be considered as authority. As to such
matters I refrain from expressing any opinion."

The principle contended for by Mr. Justice Shaw is thus in a
general way that the common-law rule of percolating waters is
entirely abrogated, and the rules of both appropriation and ripa-
rian rights regarding watercourses substituted.

With regard to the related principles which Mr. Justice Shaw
states, to be applied in analogy to the law of watercourses, there
are some opposing decisions in the law of watercourses, but the
opposing decisions we believe doubtful, as elsewhere shown. Thus,
in analogy to the right of a riparian proprietor on a watercourse,
the right of a landowner is limited by Mr. Justice Shaw to the pos-
sible use^of his land, and the taking by another to distant land is not
wrongful where the complaining landowner could not possibly use
the water on his land (being worthless) and could show no possible

S 365 PERCOLATING WATEE. 559

damage, present or prospective, to his use.*' Likewise, in analogy
to riparian proprietors on a stream, non-nse shall bar an injunc-
tion, having recourse instead to the declaratory decree, settling the
right of future use.* The decisions opposed to these proposi-
tions in the law of watercourses we have already discussed at length
and believe doubtful. At the same time, it is not clear how
to reconcile with the rule of Lux v. Haggin the statement
that priority in time of distant use may give precedence over local
use, since Lux v. Haggin so firmly, as to surface streams, made
priority of the land title the test and confined appropriation, as a
system, to the public domain; likewise with regard to priority in
time of use being of any importance with regard to local (or ripa-
rian) use between two neighboring proprietors; likewise as to the
statement that the common law may be abrogated in toto, since
Lux V. Haggin held that to do so with regard to watercourses
would, as to private lands, confiscate the landowner's property,
and as to public lands, would interfere .with the primary disposal
thereof.

We proceed to a consideration of the more recent cases before
trying to deduce some statement of the result of Katz v. WalMn-
shaw, and some statement of the new rule; saying here only that
it seems to us that the court in its later cases, has, as Mr. Justice
Angellotti contended, confined itself to the reasoning and principles
contained in the opinion of Mr. Justice Temple.

C. SUCCEEDING CALIPOBNIA CASES.

§ 366. McOlintock v. HndsoiL^ — The waters gathered in a
tunnel were not directly flowing in any watercourse, but were per-
colations shown to be tributary to a stream and in a material de-
gree supplying its flow. Plaintifi^'s tunnel was on his own land.
Defendants were riparian proprietors on San Jose Creek, and made
their claims as such. (Plaintifi^ was> also.) Plaintiff used the
water on distant lands.

''The excavation commences in the bed of the stream and about
at the level thereof, and for a distance of about four hundred feet

26 Se» supra, sec. 320 et seq. 27 141 Cal. 275, 74 Pac. 849, Shaw,

26 See supra, sees. 318, 324. J.

560 UNDBBGEOUND WATEE. § 366

it nins almost parallel with the stream at a distance of not more
than fifty feet away, and at an elevation at the upper end of the
four hundred feet, about two feet below the bottom of the stream
bed/' and the tunnel follows this course. The tunnel caused the
stream to cease flowing on the surfhce. The case of Eatz v. Walk-
inshaw governs if the tunnel diminished substantially the waters
flowing in the stream, it is held. * * By the principles laid down in
that case it is not lawful for one owning land bordering upon or
adjacent to a stream, to meike an excavation in his land in order to
intercept and obtain the percolating water, and apply such water
to any use other than its reasonable use upon the land from which
it is taken, if he thereby diminishes the stream and causes damage
to parties having rights in the water there flowing." If, there-
fore, the stream was substantially diminished to injury of defend-
ants, it is wrongful ''even if the water when taken did not con-
stitute strictly a part of the stream" but was tributary to it, on its
way to the stream. This, says Mr. Justice Shaw, would not be the
rule but for Katz v. Walkinshaw. They were at least waters which
would have eventually reached the stream. ''His [the tunnel
owner's] rights therein are no greater than they would be if he
had taken the water directly from the stream." The tunnel own-
er's right is limited to what he could do as riparian owner on
the stream; viz., take a reasonable quantity (in this manner, al-
lowable, however, semble) for the proper use (without waste) on
the riparian land where the tunnel was built.

Two points are to be noted in this case; first, that it dealt with
percolations tributary to a streaiti, not with diffused percolating
water unconnected with a stream ; and second, that the complain-
ing party suffered damage to his stream rights, while the party
complained of was not seeking use on his own land.

§ 366. Oohen v. La Canada W. Oo.^ — ^A small watercourse on
plaintiff's land, which was cultivated, was fed by springs, most
of which were a little above the upper line of plaintiff's land. In
1891, while this upper land was vacant public land, plaintiff's pre-
decessors, by pipes, etc., carried the water of the springs to plain-
tiff's land for use. Plaintiff was thus both an appropriator and a
riparian proprietor on the watercourse. In 1898-99, the upper

28 142 Cal. 43Z; 76 Pac. 47, McFarland, J. (Fint appeal, dee, also,
second appeal, sec. 369, in fret,)

§ 366 PERCOLATING WATER. 561

land now having passed into private hands, defendants, with con-
sent of the upper owner, dug tunnels near and under the springs,
entirely drying up some of them, and greatly diminishing the flow
of others, taking the water away to non-riparian lands for sale.

After saying that the old rule that "underground water not in
the form of a subterranean * stream/ but merely 'percolating,' was
a part of the soil, and could be removed by the owner of the land
at his pleasure, without consideration of the adjoining proprie-
tors,'* would have allowed the acts here in absence of evidence of
a definite underground stream feeding the springs, Mr. Justice Mc-
Farland says it has been definitely settled by Blatz v. Walkinshaw
and subsequent cases that the underground conditions (whether
subterranean stream or reservoir or otherwise) need not be proved,
so long as there is proved an actual deprivation of water to which
others have a right. '^In such an action it is sufficient for the
plaintiff to show that wrongful acts of the defendant complained
of did actually deprive plaintiff of water to the use of which he
was legally entitled, and if these acts consisted of subsurface ex-
cavations, it is not necessary for the plaintiff to show that a well-
defined subterranean stream has been intercepted, or to show the
particular subterranea/n, conditions which were disturbed, provided
it clearly appears that the acts of the defendant caused the destruc-
tion or diminution. And it has been established by these cases
that the right of an owner of land to use water percolating therein
is a right only to a reasonable use thereof for the benefit and en-
joyment of his land, and subject to the maxim, *Sic utere/ etc.,
and does not include the right, by excavations, to diminish the flow
of water to others where the diversion is not for a reasonable use
on his own land. ' ' Findings, it is held, must be made of the extent
to which the tunnels diminished the flow of the springs.

Formerly it had been decided exactly contra; the appropriator
could follow the water to the very mouth of the spring,^ but not
farther.8^

The court says that the case is very similar to McClintock v.
Hudson, and it is to be noted that both dealt with percolations
tributary to a surface supply (a spring in this case), not with

29 Ely V. Ferguson, 91 Cal. 187, 27 Cal. 262 j" Southern Pac. Ry. v. Du-

Pac. 587. four, 95 Cal. 615, 30 Pac. 783, 19 L.

80 Hanaon v. McCue, 42 Cal. 303, 10 R. A. 92.
Am. Bep. 299; Huston v. Leach, 53

Water Rights — 86

562 UNDERGEOUND WATEB. § 367

diffused percolating water having no connection with any definite
body of water. Further, the complaining party here also was dam-
aged in his spring rights while the party complained of was not
seeking use on his own land.

§ 387. Montecito etc. Oo. v. Santa Barbara.^^— Plaintiff
claimed a branch of Montecito Creek for use on non-riparian lands.
(Sale for town use.) Defendants drove tunnels on their own land
near the creek above the bed of the creek but following its line,
and inclined so as soon to pass beneath its level. In brief, ''the
tunnels were driven to one side of the creek, parallel with it, imd
below its level." Mr. Justice Henshaw says: ''First, it should
be noted as applicable to all of these appeals that this case is radi-
cally different from that of Katz v. Walkinshaw.'** Here no
question arises as to the use or the right of use, or the apportion-
ment of seepage or percolating waters by and between the owners
of the overlying lands. Here the waters flow or are developed in
a barren and mountainous country, are of no use upon the lands
within the watershed where they are found, but are of great value
to the neighboring towns, cities and fertile valleys. Each one of
the parties to this action is carrying the water to alien soil, and no
claimants — not even those who are riparian proprietors — ^pretend
to use the water upon the lands from which it is obtained. In
Katz V. Walkinshaw the condition presented was that of a well-
defined imderground catchment basin, a subterranean lake, so to
speak, loosely filled with gravels. The lands above this subter-
ranean basin were valuable because of the waters beneath, and such
of the water as was taken from this basin and used upon its su-
perior lands found its way back to the source of supply as surely
as does such water when used by a riparian proprietor of a fiowing
stream within its watershed. In Katz v. Walkinshaw, the contro-
versy arose between the owners of such superior lands upon the
one hand and a defendant water company upon the other, which,
tapping the subterranean basin, was draining its water for use
upon lands without the limits of the basin, which use, if continued,
threatened the impairment and destruction of all the overlying
lands. The main question which this court was called upon to

81 144 Gal. 578, 77 Pae. 1113; Hen- 8U 141 Cal. 116. 99 Am. St. Bep.

shaw, J. 8. C, (Oal. Sup.), 90 Pbc. 35, 70 Pae. 663, 74 Pac. 766, 64 L.
935, did not discuss this matter. B. A. 236.

§ 368 PEECOLATING WATER. 563

consider, and did consider and decide, was whether the common-law
doctrine of absolute ownership in percolating water, the cujus est
solum doctrine, was or was not, under the peculiar conditions ex-
isting in this State, subject to just limitation under the doctrine
of sic utero tuo, and this court, recognizing the inevitable injury
that must be worked to private interests whichever rule should
be held to apply, after much deliberation decided that however
differently the rule might be declared in States and countries well
and regularly supplied by rainfalls, in this State, with its great
arid stretches, its seasons of drought and its irregular meteoric
water supply, percolating waters, when circumstances of hardship
or injury should be presented in some particular case, must be held
under the rule and doctrine ot sic utere,"

The tunnels intercepted the oncoming seepage, practically form-
ing new channels for the stream. The doctrine of ** sub-flow" is
again set forth, as involved in the case. The Eaton tunnd'a right
was upheld on the ground of prescription. The city's tunnel was
declared wrongful so far as it diverted water from plaintiff (a
very small amount), leaving the determination of the amount to
a new trial, with an observation that no injunction should issue
if the restoration of that amount to plaintiff can be accomplished.
The plaintiff's rights to the stream by condemnation and prescrip-
tion with the above exceptions were upheld.

In this case it is to be noted that again the water was connected
with a stream either as its sub-flow or as percolations- tributary to
it. Also, that the complaining party suffered damage, while the
parties complained of were not seeking use on their own land ; but
the damage to plaintiff was not in the iise of his own land either,
because both parties were seeking to carry the water to distant
lands.

§ 368. Newport v. Temescal Water Oo.^— The water in this
case was unconnected with any stream, either as sub-flow or as
tributary — there was no definite stream of any kind in the neigh-
borhood. Instead, the condition presented was of a definite catch-
ment basin filled with water-bearing gravels, and hence closely like
the situation in Katz v. Walkinshaw, and the first case since that
one which dealt. purely with diffused percolating water uncom-
plicated by rights in any stream or spring. The catchment basin

32 149 Cal. 531, 87 Pac. 372, 6 L.R. A., N. S., 1098, Henshaw, J.

564 UNDERGBOUND WATER. § 368

involved part of the lands, but the trial court found that there waf?
no single basin involving all of them. Mr. Justice Henshaw said :
**To follow and answer plaintiffs ' argument would amount to no
more than a setting forth of the evidence which does sustain the
findings, and to do this fairly would fill a volume of our reports."
And adds that a naked statement of the evidence on a single point
shows the technical nature of the testimony, and this testimony,
to show that there was a subterranean connection between the pump-
ing works and plaintiflP's land failed, in the end, to show it as
to a substantial part of the land. The land was all so impregnated
with alkali as to be unfit for agriculture, little benefited by irriga-
tion. The water level had, in three years, been lowered (only ten
feet), but the court distinctly repudiated this "post hoc ergo propter
hoc" argument, there being evidence that periods of drought and
pumping by strangers and as well by plaintiffs themselves were the
substantial causes, and the pumping by defendant only cumulative,
and reasonable rainfall would raise the water level to its former
plane. The court says: ** These findings so completely dispose of
the controversy upon its merits that little is left to be said," and
adds: *'The decision of Katz v. Walkinshaw is adhered to, but as
plaintifi!i3 on the facts failed to establish any ground for relief un-
der the principles there laid down, no amplification of those prin-
ciples becomes necessary." Adds that a temporary injunction un-
til payment of damages (which were insignificant) might have been
granted, but that such was not the form of the suit. On petition
for rehearing (denied), Beatty, C. J., thought there was a cogent
argument that should be heard based on the contention that the
acts were the same as were enjoined in Katz v. Walkinshaw.

The controlling facts seem to be, from the above, that as to part
of plaintiff's land, there was no subterranean connection with that
of defendants, and as to the rest, it was unfit for cultivation, and
defendants' acts were not such as to have done substantial or per-
manent injury even if it were fit for cultivation. This seems to
be the reason why the case was not within Katz v. Walkinshaw.
That is, plaintiff failed to show that there was any damage to the
use of his land.

The points to be noted are that the case dealt purely with
diffused percolating water, no stream of any kind being involved;
that the complaining party was not, and could not be damaged

S 369 PERCOLATING WATER. 565

in the use of his own land, and that the party complained of was
taking the water for sale on distant lands.

•

§ 369. Cohen v. La Canada Water Co.^— It was said that if
the percolating water fed a stream, the stream claimant (being
both appropriator and riparian owner) could enjoin the tunnel
owner ,^ but it was held that the proof did not establish the con-
nection with a stream. The place of use was **not riparian^ to
and do not abut or adjoin the lands upon which said tunnels are
situated." It was claimed that such use is per se unlawful. Mr.
Justice Lorigan said: ''In support of her position the broad
proposition is contended for that percolating waters can never
be taken away from the land where they exist, although ad-
joining proprietors are not injured or damaged thereby, and it
is asserted this rule finds support in the decisions of this court
in Katz v. Walkinshaw and McClintodk v. Hudson,** in Southern '
Cal. I. Co. V. Wilshire and Montecito Valley Co. v. Santa
Barbara,*' and in Gutierrez v. Wege.^ But these cases do not
lay down the doctrine as broadly as appellant contends for. They
lay down the rule that waters of a stream, or percolating
waters, cannot be taken away from the lands on which they flow
or from lands upon which they are found, for use elsewhere,
where the result of such taking would be to injuriously afCect ad-
joining property owners. The principle which enters into this
rule is the protection to be given the superior natural rights of
adjoining property owners to the flow and use of such waters.
Where, however, there can be no injury worked to such adjoining
owners by the taking and tLse elsewhere of su^h waters, no limita-
tions should be placed upon the right of one developing them as to
their i^e." ® And held that such developed water could be taken
to any lands the defendants saw fit. ''For authority sustaining

33 151 Cal. 680, 91 Pac. 584, Lor- 1^1 Cal. 275, 74 Pac. 849, 64 L. R. A.
igan, J. (Second appeal. See, also, 236, 375, respectively,
first appeal, sec. 366, supra,) ^"^ 144 Cal. 68, 77 Pac. 767, and 144

rrlJtlr,::'"' ""• '''' P-<^«^*-« """h f4' cL'^a^V'o'pac. 449. The

iriDmanes. Wilshire and Gutierrez cases did not

36 Note the use of the word "npa- involve underground rights, but were

"*'*• cases of riparian rights on surface

36 141 Cal. 116, 99 Am. St. Rep. streams.

35, 70 Pac. 663, 74 Pac. 766; and 89 Italics ours.

566 UNDEBGEOUND WATER. § 369ii

■

this proposition we cite Hansen v. McCue,^ Gould v. Eaton,*^ and
Monteeito etc. Co. v. Santa Barbara."^

The reasoning of. this case, and some of the citations apply
the rule of riparian rights to percolating water, and the case is
thus reasoned on the ground that the laws of percolating water and
of watercourses are now merged. But the actual decision is upon
the ground that plaintiff showed no damage, nor any possibility
thereof,**

The points to be noted, are that the water was percolating, dif-
fusedy having no connection with any stream as sub-flow or tribu-
tary, and hence the facts are like Katz v. Walkinshaw, with the ex-
ception that no definite underground catchment basin of water-
bearing gravels existed. The complaining party was not, and could
not be, damaged in the use of her own land, and the party com-
plained of was taking the water to distant land.

§ 369a. Burr v. Maclay R. Oo.^ — ^An order was entered Feb-
ruary 17, 1908, in this case as follows : *^By the Court. It appears
that the lands of the plaintiff and defendant are situated over a
subterranean basin or reservoir containing percolating water ; that
the defendant is appropriating said water and carrying the same
to lands not over said basin and distant two or more miles there-
from, to be there distributed and used; that upon a part of the
plaintiff's land he was using the water of said basin long before
the defendant began the appropriation complained of, but that
upon a large part of it he has never used said water, and he claims
the right to restrain the taking by the defendant so as to preserve
sufficient water in the basin for use on the last mentioned lands
in the future, should he desire to make use of it thereon. The
rights of such parties, under such circumstances, were expressly
left undecided in Katz v. Walkinshaw.**^ It should be referred
to the court in bank upon full argiiment. It is ordered that the
submission herein in department be set aside, that the cause be
heard before the court in bank and that it be placed on the Los

40 42 GSal. 306, 10 AmrBep. 299. to enter the tunnel in those eighty

41 111 Gal. 639,^52 Am. St. Bep. feet, but no more.

201, 44 Pac. 319. 43 There would be much conflict

42 144 Gal. 585, 77 Pac. 1113. whether the absence of damage would
The tunnel of defendant was partly be material in regard to riparian

(eighty feet) in plaintiff's land. It rights. Ante, sec. 315 et seq.
was held that this gave plaintiff the 44 L. A. No. 1S30 (Oal. Sup.)

right to whatever water she proved 46 141 Cal. 135.

9 370 PEBCOLATING WATER. 567

Angeles calendar at the April session, 1908, for such further argu-
ment upon this question as may be presented. ' '

§ 370. In the District Oonrt of Appeals. — '^ Water passing
through the soil, not in a stream, but by way of filtration, is not
distinctive from the soil itself; the water forms one of its com-
ponent parts. In this condition it is not the subject of appro-
priation."^ Adding that definite streams, however, are none the
less subject to appropriation (on the surface) because issuing from
wells or springs; subterranean interference with the flow on the
surface not being attempted. The point to be noted is that the
theory of the old rule is adopted and not considered abrogated
in toto.

In Ex parte Elam it was said: ^'This water, the ownership of
which until actual possession is acquired being in the public, or at
least that portion of the public who may own the surface of the soil
within the artesian belt, is subject to a reasonable use only by those
interested therein. This reasonable use is determined in Katz v.
Walkinshaw ^"^ to be the use of such amount of the subterranean
water 'as may be necessary for some useful purpose in connection
with the land from which it is taken.' The conditions existing
in this State with reference to the necessity for the conservation
of irrigating waters are most clearly set out in the case last cited,
and the reason for the rule restricting the use clearly shown.
Whenever a landowner exceeds this reasonable use, he is appro-
priating to himself that which belongs to others who are entitled
to a like use, and to that, extent is obstructing the free use of
property so as to interfere with its comfortable enjoyment, and
which, by sections 3479 and 3480 of the Civil Code, is declared
to be a public nuisance." ....** As we have before attempted
to show, no surface owner possesses the right to extract the sub-
terranean water in excess- of a reasonable and beneficial use upon
the land from which it is extracted. Any additional extraction
is not in the exercise of a right if by such exercise the rights
of the others are injuriously affected." And held that the use of
artesian wells could be regulated by statute.^ In saying that per-
colating water '' belongs to the public," a new phrase is introduced,

46 Wolfskm T. Smith (Cal. App.), ^^ ^^^' ^^» ^* ^^' ^^^^ ^ ^- ^- ^'
89 Pac 1001. ^ j,^ ^^ ^^^ ^(^j .J g,

4T 141 Cal. 134, 99 Am. St. Rep. 35, pac. 811.

568 , UNDEBGEOUNB WATEB. § 371

suggestive of the term ^'publici juris'' as used with regard to the
water in watercourses. The language in Ex parte Elam certainly
resembles the law of running streams. The insistence on damage
to the complaining party is also to be noted.

§ 371. Recapitulation of the Oalifomia Oases.

Injunction granted in Katz v. Walkinshaw, McClintock v. Hud-
son, Cohen v. La Canada Co. (first appeal). Refused in Monte-
cito V. Santa Barbara, Newport v. Temescal Co., Cohen v. La
Canada Co. (second appeal). The cases are hence equally divided
in result.

Springs or streams were involved in McClintock v. Hudson, first
Cohen case, and Montecito case^ but not in the other three. Only
half the cases hence dealt with purely, diffused water.

Underground reservoir appeared in Katz v. Walkinshaw and
was insisted on. Also appeared partly in Newport case, but was
not insisted on. Was not present in McClintock and the two Cohen
cases, which .nevertheless considered the principle of Katz v. Walkin-
shaw involved, and was expressly declared unnecessary in the first
Cohen case. We hence feel justified in saying (as elsewhere) that
the existence of an ** underground reservoir'* is not an essential
point. But it was specified in the order just entered in the Burr
case, which thus again brings this element into prominence.

Reasoning, The second Cohen case is partly reasoned on the view
that the law of watercourses has been substituted for the old law
of percolating water. The rest of the cases are reasoned on Mr.
Justice Temple's view that the old law is only modified, and not
abrogated.

Damage. In the three cases of injunctions being granted, the
presence of damage to plaintiff's spring or stream rights, or to
the use of his own land where mere diffused percolating water,
was insisted on. In the other three, where injunctions were refused,
the absence of such damage or the possibility thereof, was like-
wise insisted on, and was expressly declared to take these cases
out of the rule of Katz v. Walkinshaw. We think this the essen-
tial point of the new rule, which only modifies the old rule where
the complaining party shows damage. The rule is limited, as Mr.
Justice Henshaw said, to ^'circumstances of hardship."

§ 371 PERCOLATING WATEB. 569

Distunt use by defendant was the ground of complaint in all of
them, and was enjoined on the showing of such damage ; permitted
in the absence of such showing.

Not present. Among the elements not present in any of these
cases may be mentioned local use on their own land by both parties,
or distant use^ of purely diffused percolating water by both parties
(the Montecito case having involved a stream). These matters
have not been involved in any case.

The cases involving springs or streams are within the realm
of a definite collection of water, and protect, against at least dis-
tant use, the surface stream use claimed under the law of riparian
rights for riparian use. They stand for the principle that the
tributary percolations are a part of the stream, to be protected
to the riparian proprietor on the stream, where damage occurs,
against at least distant use by the party complained of. The other
cases not involving springs or streams, but purely diffused per-
colating water, unconnected with any spring or stream, protect,
against distant use, the reasonable use of his own land by the com-
plaining party, but permit the distant use where the complaining
party can show no damage to the use of his own land. While in
the former cases the complaining party stands on a stream right
(which may perhaps include an appropriation), in these latter
cases he stands on his right to a reasonable use of his own land
(which does not include an appropriation).

These cases hence leave the old rule of percolating water in full
force where the complaining party is not dajnaged in the use
of his own land (in the case of purely diffused water) or in his
use of a watercourse ('Where there is a watercourse, which may
bring in the law of appropriation of surface waiter for distant use).
Where strictly diffused water, the law of appropriation thus cannot
enter to give precedence to a distant over a local use (as possibly
it may when an appropriated surface stream is involved) ; the
reasonable local use this rule secures against distant use at all
times.

These cases thus only modify the old rule in case of dam-
age to local use; and aside from cases of such damage, have not
abrogated the old rule for a substitution of the law of water-
courses, where no watercourse is involved on the facts.

570

UNDEBGBOUND WATER.

§§ 371a, 372

§ 371a. 0oncliuioii8. — ^We conclude that but two questions are
hence involved in a case under the California rule, to wit :

First, is the complaining party damaged in his use of the water
on his land, or in his rights in a watercourse ?

Second, if so, is the damage caused by a reasonable use of his
own land by the party complained off

Without such damage, no use whatever of the party complained
of is wrongful. With such damage, the damage is wrongful only
if not done in such reasonable use of his own.

This is substantially an adherence to the opinion of Mr. Justice
Temple, and but a modification of the old law in case of damage, and
not an abrogation of it to replace it with the law of surface streams.**
The old law left the use of percolating water to the facts of nature,
defeasible whenever natural conditions permitted. It refused to
recognize any indefeasible right, and all use was defeasible. The
new rule does not abrogate this to substitute any now indefeasible
right; it only modifies it. The complainant's use is still de-
feasible where itself not connected with the use of his land; and
where so connected, remains still defeasible to the extent of a rea-
sonable degree,'by a neighbor's use on the neighbor's own land. The
old law is only modified and not abrogated.

§ 372. Same. — In reaching the above results the California
rule does not differ from what may now be called the general
American rule. Mr. Justice Temple considered that he was laying
down the general American rule, though Mr. Justice Shaw
regarded it as a rule peculiar to California because of the
aridity of the climate and scarcity of water in the southern
part of the State ; ^ and the Colorado court has also so considered
the decision, saying: **The law regulating ownership of percolating
waters in the arid States is now of great — as time passes will be of
still greater — ^importance; and until a proper case is presented
calling for it, we decline to announce the rule applicable to our

^ Where neither party seeks use on
his own hind, and a watercourse is in-
volved, the law of the watereourse will
probably govern (Montecito ease) ;
where merely 'diffused pereolating
water, no decision has yet dealt with
such a case. Either the old law of
damnum absque injwia, or that other
principle of possession being good

against a wrongdoer, may be applied.
Mr. Justice Shaw would apply the law
of appropriation as developed with re-
gard to surface streams on the public
domain.

50 Cf. Lux V. Haggin, 69 Cal. 255,
at 311, 10 Pae. 674, saying the court
cannot make a separate rule for sep-
arate parts of the State.

§ 372

PEBCOLATING WATEB.

571

loc<U conditions. We make this observation in view of the fact
that, after the briefs on this appeal were in, the supreme court of
California, in a series of cases, has considered this important ques-
tion, and established for that jurisdiction the rule that the right
of an owner of land to use water percolating therein is the right
only to a reasonable use thereof for the benefit and enjoyment
of his land.""

Recent cases throughout the country, however, have laid down
the same rule though no aridity of climate was involved.*^ Re-
viewers all take the same view — ^that the rule is the prevailing
American view and. not confined to arid regions, nor resting upon-
natural scarcity of water or unusual local conditions.*® In one
case, reviewing the recent decisions, this is pointed out, and it is
added: ''We must yield assent to the latter doctrine of reasonable
and beneficial use, which constitutes rather a qualification^ of the
early rule than an announcement of a new rule.^^^

**It is believed, however, that the prevailing American view is
that, in order to justify the cutting off of another's water supply
derived from percolating waters, it is necessary that this should
be the result of a reasonable user of defendant's rights in his own
lands. "»

51 Smith etc. Cb. v. Colorado etc.
Co., 34 Colo. 485, 82 Pac. d40, 3 L.
R. A., N. 8., 1148.

62 Cases cited in the next chapter.

68 E, g., 4 Mich. Law Bev. 541, 99
Am. St. Bep. 66, note, 64 L. B. A.
255, note; 18 Harv. Law Bev. 415;
Water Supply Paper 122 of the U. S.
Geological Survey ; 13 Tale Law Jour-
nal, 222; 1 Columbia Law Beview, 506.

M Citing and reviewing the recent

cases. Pence v. Carnev, 58 W. Va.
296, 112 Am. St Bep.*963, 52 S. £.
702, 6 L. B. A., N. S., 266, remark-
ing that, though not a substitution of
the law of surface streams, the new
rule has similarities thereto.

56 E. W. Huffcut, in 13 Yale Law
Journal, 222, reviewing the recent
cases. He considers the doctrine,
"after all, merely one of social util-
ity."

572 UNDERGROUND WATER. § 372a

CHAPTER III.

PERCOLATING WATER— REASONABLENESS.

§ 372a. Damage.

§ 372b. The damage may be excused.

§ 373. Same.

§ 374. Reasonableness as a question of fitness of purpose.

§ 375. Same.

§ 376. Same — ^Drainage.

§ 377. As affected by degree of damage.

§ 378. Importance in mining regions.

§ 378a. Miscellaneous rulings.

§ 372a. Damage. — That the complaining party be damaged in
the use of his land is an essential element of the new rule ; ^ is,
in fact, its starting point. But what constitutes being damaged
in the use of one's land? Under the law of riparian rights upon
streams, distinction is made^ betw^een (1) actual present damage to
actual use; (2) a possible future damage, a damage to capacity
of use, during present non-use; (3) a damage implied by law from
mere diversion, diversion a damage per se. The place of these
three kinds of damage in the law of riparian rights has given rise
to great conflict, and undoubtedly will be litigated also under the
new rule of percolating water.

In the recent cases upon percolating water we see so far the
following as actually decided in this connection:

(1) Actual present damage to actual use of the water on com-
plainant's land is sufficient. The California cases granting in-
junction * were all of this nature — ^the complaining party was ac-
tually using the water on his land.

(2) Damage will not be implied. A diversion of percolating
water is not a wrong per se. The cases refusing an injunction *

1 Supra, sec. 371. Cohen v. La Canada W. Co. (first ap-

2 supra. Bee. 312 et Be,, Part 11. P^j'l^.l^^^S*^. ^^.^.ILf^X 149
« yn. Cal. 531, 87 Pac. 372, 6 L. R. A., N.

3 Eatz V. Walkinshaw, 141 Cal. 116, S., 1098; Cohen v. La Canada W. Co.
99 Am. St. Rep. 35, 70 Pac. 663, 74 (second appeal), 151 Cal. 680, 91
T>«>. Taa £tA T -o A oofl. -M-^ns^+^ir Pac. 584. See, also, Monteeito W. Co.
Pac. 766, 64 L. B. A. 236; McClintock ^ g^^^ Barbara, 144 Cal. 578, 77

v. Hudson, 141 Cal. 275, 74 Pac. 849 ; p^©. ms.

§ 372a

BEASONABLENESS.

573

actually so held, and it appears consistently in the others as dictum.
The owner of worthless land is allowed no ground of complaint, nor
apparently (but this not so sure) is one who, though owning good
land, shows no capacity or possibility for prospective use of the
diverted surplus. In this, these cases are .of at least argumenta-
tive force in support of our contention that this is also the true
rule under the common law of riparian rights. Loss of natural
sub-irrigation,^ as an argument supporting the rule of damage from
diversion per se, as asserted in some cases under riparian rights,®
is here denied. The* Newport case dealt with it, the plaintiff
having contended that the pumping per se damaged his land be-
cause it dried up the land (irrespective of depletion of wells),
and deprived it of the under-percolation naturally sub-irrigating
it; but instead of assuming this to be true (as asserted with regard
to streams) , it was examined into in the Newport case like any other
question of fact, and found not to exist to any substantial degree.
Instead of being assumed as a damage per se, it is here left (as we
contended it should also be left with regard to streams) to actual
proof as a question of fact bearing on the possibility of damage.
We see also the following as dictum in all these cases:
(3) Probably a possible damage to future use by plaintiff on his
land (damage to his capacity of use) will be given some considera-
tion during plaintiff's non-use (that is, non-use will not entirely
bar plaintiff), but such possibility of future use must be the sub-
ject of actual proof. What will be its effect during present non-
use (the riparian right places future possible use as high as pres-
ent use, and disregards non-use) has not, however, been actually
involved or decided in any of the recent cases.'' In the common
law of riparian rights there is a tendency to refuse a peremptory
injunction during the non-use, granting instead a declaratory de-

s In the Nineteenth Annual Report
of the United States Geological Sur-
rey (part n, page 274), in an elabor-
ate iifyestigation of the movements of
ground water, it is said: "In an-
other part of this paper it was shown,
from direct observations, that the
withdrawal of a comparatively small
amount of water from a soil already
saturated is sufficient to produce a
marked change in the level of the
ground water, and hence to cause
marked change in the level of waters
in wells, and in the height of the

ground water in sections where crop»
depend on water which is derived from
the under-flow hy natural suh-irriga'
tion, * '

8 E, g,, Heilbron v. Last Chance
Water Co., 75 Cal. 117, 17 Pac. 65,
saying: "The flow of the water of a
stream, whether it overflow the banks
or not, naturally irrigates and
moistens the ground to a great and
unknown extent, and thus stimulates
vegetation. ' '

7 Burr V. Maclay Co. being now un-
der consideration by the court.

574 UNDERGROUND WATER. §§ 372b, 373

•

cree, settling plaintiff 's right of future use, and this is one of the
principles which Mr. Justice Shaw in Katz v. Walkinshaw includes
as applicable here, and which has been specially set for argument
in Burr v. Maclay Company, now under consideration by the court.

§ 372b. The Damage may be Excused. — ^Before all else, as
the starting point of the new rule, the complaining party must
show the necessary damage under the rules just stated in the pre-
ceding section. The old rule has been oply modified, not abro-
gated, and in the absence of a proper showing of damage, we must,
as was said in the second Cohen case,^ look to the old law and the
old authorities. An actual or possible damage in the use of com-
plainant's land is first of all essential, and in the rest of this
chapter we assume always that it has been shown and established.

But while under .the new rule such damage is always prima facie
wrongful, yet it is only prima facie so, because the reasonable use
of the land of the party complained of himself, is a proper ex-
cuse and justification. In case of such excusable damage, the
damage to another still remains damnum absque injuria. The
damage makes a prima facie wrong except where done in the rea-
sonable use of the party complained of; and the second step is
thus the offering of the reasonable use of one's own land in excuse
for the damage to a neighbor. The law of damnum absque in-
juria remains where damage is not suffered by complainant in
the use of his land, and where damage is so suffered but is never-
theless caused by the reasonable use of his own land by the party
complained of. While, under the old rule, all damage was dam-
num absque injuria, under the new rule it is so only in the above
excepted cases.

§ 373. Same. — There are some decisions to the effect that the
damage is always damnum absque injuria except when done with
malice, which must be distinguished from the new rule. Under
such cases the taking causing damage is prima fade rightful,
and the wrongful case is the exception through malice, the burden
being on the complaining party to show the wrongful element
(viz., malice). And hence such cases are not so much a departure
from the English rule as are the recent cases, which consider the

8 1.51 Cal. 680, 91 Pac. 584.

§ 373 REASONABLENESS. 575

damage prima facie wrongful, and put upon the party complained
of the burden of showing justification.

To illustrate the rule of malice, the civil law provides:® '^Et
sane actionem non debet habere, si non animo vicino nocendi, sed
suum acrum meliarem faciendi id fecit/' Commenting on which
Lord Wensleydale (Baron Parke) said in* Chasemore v. Richards : ^^
**The civil law deems an act, otherwise lawfuLin itself, illegal if
done with a malicious intent of injuring a neighbor, animo vicino
nocendi." In the Partidas, the Spanish Codes," it is said: '*Law
19: When a man has a fountain or well in his house, and his
neighbor wishes to make one in his house likewise, in order to pro-
cure water for his use, the latter may do it and the former can-
not prevent him, notwithstanding the water in the first well, or
fountain, may be thereby diminished; unless the person wishing
to make the new well has no need of it, and acts maliciously."

In an early New York case: **A further exception exists in case
of an injury done by cutting off such waters with malice. No per-
son can wantonly and maliciously cut off on his own land the under-
ground supply of a neighbor's spring or well without any purpose
of usefulness to himself. "^^

This also appears in some of the California cases. Thus, in
Hanson v. McCue : i^ < * The question then comes to this : One who
is owner of the freehold — usque ad infernos — digging in the soil
for the lawful purpose of his own profit, and not actuated by the
malicious intent to wantonly deprive the plaintiff of the flow of
water, is, at the instance of the latter, enjoined from so digging,
because he will thereby divert the waters which percolate the soil
from the spring from which the artificial watercourse leads to
the lands of the plaintiff." (Page 309.) ''The defendant would
have had the right to dig upon his own land for any purpose
not proceeding from mere malice, even though he had thereby di-
verted the percolations from a spring. on the plaintiff's premises.
If the plaintiff was the owner of the Dixon Springs, with a con-
sequent right to the use of all its water, the defendant would have
the clear right to dig upon his adjoining land, for any useful pur-

9 Digest, 39, 3, 1, sec. 12, Pothier's Francis (Mass.), 18 Pick. 117; Ches-
ed., 1782, vol. 3, p. 20. ley v. King, 74 Me. 164, 43 Am. Bep.

10 7 H. L. Gas. 349. 569; Frasder v. Brown, 12 Ohio St. 294,

11 Partidas Third Title, 31, 1 Mo- and see, also, other early American
reau and Carleton's Trans. 409, 410. cases in 19 L. K. A. 92, note.

12 Delhi V. Youmans, 50 Barb. (N. 13 42 Cal. 303, 10 Am. Kep. 299.
T.) 316. See, also, Greenleaf y.

576 UNDERGROUND WATER. § 373

pose, notwithstanding he might thereby divert the percolations,
and thus destroy the spring. He would not be allowed to do it
from mere wantonness and malice; but the owner of the -soil is en-
titled to use the percolations through it, for any purpose which
he may deem beneficial, or may divert them in another direction
in the prosecution of any work on his own land which he may con-
sider advantageous to him. I deem it unnecessary to inquire into
the reason of the ruling, which, however, is fully stated in the
carefully considered case already cited, and the numerous authori-
ties, therein referred to. • I do not understand plaintiff's counsel
to deny that the defendant might lawfully divert the percolations
from the spring, provided it was only incidentally done in the
prosecution of an independent or collateral work on his own prem-
ises; but he claims that the sole object of the tunnel is to cut off
the supply of the water, and thus destroy the spring, which he
insists the defendant has no right to do by a work expressly prose-
cuted for that especial purpose. But the findings show that the
object of the tunnel is to collect the water for a conmiercial pur-
pose, to wit: to furnish the neighboring village of San Rafael
a supply of fresh water — and this certainly is a proper and use-
ful purpose. If the defendant has the right to divert the percola-
tions by digging a ditch for the mere purpose of drainage, or by
sinking a well essential to the enjojinent of his property, I can
perceive no reason why he may not accomplish the same result
for any other purpose which he may deem advantageous to him ; I
think he may do it for any purpose which is not purely malicious. ' '
(Page 311.) Bartlett v. O'Connor" is also to this effect, saying:
''And although the court in its findings did not use the word
'malice,' yet it substantially found that the defendants intention-
ally, unnecessarily, and without benefit to themselves or others
diverted the water to the injury of the plaintiffs. This the law
characterizes as a malicious injury. Conceding that defendants
were entitled to drain the land for the purpose of cultivating it,
yet if, without inconvenience or extra expense, they could have
adopted a mode or means of drainage not; injurious to others, they
had no right to adopt a mode which was not only injurious to
plaintiffs, but intentionally so, as found by the court." In South-
em Pacific Co. v. Duf our, Mr. Justice McParland, dissenting, says
(as is said in Hanson v. McCue) that a spring cannot be lawfully

14 (Cal.) 36 Pac. 513.

§ 374 BEASONABLENESS. 577

undermined and destroyed by a trench or tunnel run for that ex-
press purpose.

But this rule that malice will make unlawful a damage other-
wise damnum absque injuria has been strenuously and usually
denied in the common law,^^ and is not the ground on which the
new cases proceed. Instead, the damage is a prima facie wrong
without malice or motive to make it so. It is then an entirely
different question in offering a proper purpose or motive (the
reasonable use of one's own land) in excuse to an action for caus-
ing such damage. The new rule arrived at damnum absque injuria
at its destination, instead of starting with it.

§ 374. Beasonableness as a Question of Fitness of Purpose. —

The excuse or justification, as seen in the last chapter, is that the
party complained of who did the damage to the use of a neighbor
was acting in the reasonable use of his own land.

When we come to ask what is meant by this reasonable use
which will turn a damage prima facie wrongful into damnum
absque injuria, a similar principle under the conunon law of ripa-
rian rights suggests itself — ^that of ** natural uses." As seen in
discussing this term there,^® the term '^ natural uses " is probably
based on an idea running through other branches of the common
law, that there is such a thing as an ordinary, proper or natural
use of one's land, and if damage follows to a neighbor in such use
it is not wrongful. So, though the whole of a stream be consumed
by a riparian proprietor for such ** natural use," it is at common
law damnum absque injuria because done in the natural use of
the land. In Katz v. Walkinshaw " Mr. Justice Temple said: *'It
is a general rule — in fact, a universal principle of law — ^that one
may make reasonable use of his own property although such use
results in injury to another." The statements are entirely the
same in this — ^that the purpose of use of the party complained of
is looked to in justification of a damage. The reasonableness which
Mr. Justice Temple contemplates is not so much one of effect on
the other, — on the contrary, it is a rule by which such effect is
to be to a certain degree absolutely ignored and become darmium

15 Allen T. Flood, [1598] App. Cas. le St^pra, sec. 283.

1 ; Chasemore v. Richards, 7 H. L. „ , ., ^^ , .g , , .« ^g . ^

Cas. 349; Fisher v. Feige, 137 Cal. ^ ^^^ ^^' ^^^' *^ ^^^' ^^ ^^' ^^'

39, 92 Am. St. Rep. 77, 69 Pac. 618, B^p. 35, 70 Pac. 663, 74 Pac. 766, 64

59 L. R. A. 333. L. R. A. 236.
Water Rights — 87

578

UNDBBGEOUND WATER.

§ 375

absque injuria, — but one of the fitness of the purpose or motive
of the party complained of. And this we believe to be the true
explanation of ''reasonableness" in this connection; that it means
a reasonable use of his own land as the purpose or motive of use
by the party complained of, offered in justification of damage to
a neighbor.^® It is also the principle of the numerous recent deci-
sions from various jurisdictions laying down the rule of reasonable

use.

As expressed in one case,^ a neighbor must not be damaged in
his use of the water ''except it was done in the exercise of a legal
right to improve the land, or make some use of it in connection
with the enjoyment of the land itself."

§ 376. Same. — In deciding, then, what is a reasonable use of
the party complained of, the fitness of hi§ piurpose or motive is

18 Quotations from Mr. Justice
Temple's opinion to this efPeet have
already been given, and the ease of
Katz y. Walkinshaw is usually cited
to the same efPeet, e. g., in 18 Har-
vard Law Beview, 415 (article by
James Barr Ames) ; in 13 Yale L. J,
222 (article by E. -W. Huffcutt) ;
Pomeroy's Equitable Bemedies, sec.
563. See, also, 4 Mich. L. B. 541; 1
Columbia L. B. 506.

10 The f oUowing are all very recent
eases, and some of them cite Katz v.
Wallunshaw in support of their rul-
ing:

Calif orMa, — See list of cases 8upra,
sec. 360, note 13.

Colorado. — Smith v. Colorado etc.
Co., 34 Colo. 485, 82 Pac. 946, 3 L.
B. A., N. S., 1148 (comment only).

Delaware, — ^Little v. American Tel.
Co. (Del.), 67 Atl. 169 (dictum).

Georgia^ — St. Amand v. Lehman,
120 Ga. 253, 47 S. E. 949.

/nduzfui.— -Oagnon v. French etc. Co.
(Ind.), 72 N. E. 849.

/oiro.— Willis v. City of Perry
(Iowa), 60 N. W. 728; Barklay v.
Abraham, 121 Iowa, 619, 100 Am.
St. Bep. 365, 96 N. W. 1080, 64 L.
B. A. 255.

Kentucky. — Homby v. City of Daw-
son Springs (Ky.), 104 S. W. 259;
Louisville Co. v. Kentucky Co., 117
Ky. 71, 111 Am. St. Bep. 225, 77 S.

W. 368, 70 L. B. A., N. S., 558,
dictum.

Minnesota. — Stillwater Co. v. Farm-
er, 89 Minn. 58, 99 Am. St. Bep. 541,
93 N. W. 907, 60 L. B. A. 875;
Erickson v. Crookston etc Cb., 100
Minn. 481, 111 N. W. 391, 8 L. B. A.,
N. S., 1250; Farmer v. Stillwater Co.
(Minn.), 108 N. W. 824.

Missouri, — Springfield W. W. v.
Jenkins, 62 Mo. App. 74, dictum.

New Forfc.— Smith v. City of Brook-
lyn, 18 N. Y. App. Div. 340; Same
v. Same, 160 N. Y. 357; Forbell v.
New York, 164 N. Y. 522, 79 Am. St.
Rep. 666, 58 N. E. 644, 51 L. B. A.
695; Beisert v. New T?ork, 74 N. Y.
Supp. 673, 69 App. Div. 302; Hathorn
V. Saratoga etc. Sanatorium, 55 Misc.
Bep. 445, 106 N. Y. Supp. 553.

West Virginia, — Pence v. Carney,
58 W. Va. 296, 112 Am. St. Bep. 963,
52 S. E. 702, 6 L. B. A., N. S., 266.

These are all (except the first two
New York cases) very recent cases.
The older cases to the same effect are
cited by Mr. Justice Temple in Katz
V. Walkinshaw.

But for two recent cases contra,
see Huber v. Merkel, 117 Wis. 355, 98
Am. St. Bep. 933, 94 N. W. 354, 62
L. B. A. 589; Houston By. v. East
(Tex. Sup.), 81 S. W. 279.

20 Smith V. City of Brooklyn, 18
N. Y. App. Div. 340, 4« N. Y. Supp.
141.

375

REASONABLENESS.

579

looked to, which must be for the reasonable use and bienefit of his
own land on which the water is taken.

It must be on his own land. It will not be justification of dam-
age if the purpose of use is off his land, such as. sale of the water
to others. Thus, pumping to supply a city (New York) to the
damage of a neighbor, is held wrongful.^* The party complained
of is not allowed to **make merchandise" of the water to the in-
jury of his neighbor.^ Such, also, was the precise question de-
cided in Eatz v. Walkinshaw, holding that averments that plain-
tiff had wells, the water of which was necessary and actually used
for domestic use and irrigation on the land on which they were
situated, and that defendants by means of other wells on other
land drew off the water from plaintiff's wells, :^or use on a dis-
tant tract, causing plaintiff's wells to dry, sufficiently state a cause
of action for diversion of percolating water.^

It must, also, be for the benefit of the land of the party com-
plained of as well as on it. Where the water, though not taken
off the land is wasted without any benefit to the land, the damage
to the neighbor is not justified.^ It has, however, been held that
a temporary waste while pumping out a well during sinking is
not wrongful, if not continued after the well is down.^ Irriga-
tion is, of course, a justifying purpose, and the case of Southern
Pacific Co. V. Dufour** may be rested on this ground without
confiicting with the new rule.

When the use is upon one's own land for the benefit and ad-
vantage thereof, it is proper regardless of damage to a neighbor, so
long as the damage is not excessive.^

21 Porbell V. New York, 164 N. Y.
522, 79 Am. St. Rep. 666, 58 N. E.
644, 51 L. B. A. 695; Stillwater etc.
Co. V. Farmer, 89 Minn. 58, 99 Am.
St. Eep. 541, 93 N. W. 907, 60 L. R.
A. 875; Reisert v. New York, 69 App.
Div. 302, 74 N. Y. Supp. 673; Ham-
by V. City of Dawson Springs (Ky.),
304 S. W. 259.

22 Erickson v. Crookston etc. Co.,
100 Minn. 481, 111 N. W. 391, 8 L.
R. A., N. S., 1250.

23 Katz V. Walkinshaw, 141 Cal.
117, 99 Am. St. Rep. 35, 70 Pac. 663,
74 Pac. 766, 64 L. R. A. 236.

In one case it seems to be held
(Pence v. Carney, 58 W. Va. 296, 112
Am. St. Rep. 963, 52 S. E. 702, 6 L.
R. A., N. S., 266), tiiat bottling water

from a medicinal spring for sale else-
where off the land may be done sub-
ject to the neighbor's right to a rea-
sonable share for the same purpose,
as well as for use on his land.

24 Barclay v. Abraham, 121 Iowa,
619, 100 Am. St. Rep. 365, 96 N. W.
1080, 64 L. R. A. 255; St. Amand v.
Lehman, 120 Ga. 253, 47 S. E. 949.

25 Pence v. Ckimey, supra.

26 95 Oal. 616, 30 Pac. 783, 19 L.
R. A. 92.

37 Oases supra; see, also, Tampa
W. W. Co. V. aine, 37 Fla. 586, 53
Am. St. Rep. 262, 20 South. 780, 33
L. R. A. 376; Miller v. Black Rock
Co., 99 Ya. 747, 86 Am. St. Rep. 924,
40 S. E. 27; Herriman v. Eehl, 25
Utah, 96, 69 Pae. 719; Clark v. Lum-
ber Co., 80 Miss. 535, 31 South. 905.

580 UNDEROROUNB WATER. f 376

I 376. Same— Drainage. — ^The reasonable use being use of
land (and not necessarily of water if the land may be used with-
out the water), then drainage is a proper purpose and a reason-
able use of land where the land is thereby benefited. Accordingly,
it is Mr. Justice Temple's view (Katz v. Walkinshaw) that damage
to a neighbor from mining, excavating, clearing forests, drainage,
etc., is not wrongful, though, of course, the party complained of
does not himself in such cases actually use the water. It is waste
of water but for the benefit of the land, and the drainage of land
is as proper a purpose as irrigation, for example, and the damage
to the complaining party just as much damnum absque injuria.
We quote to this effect from the opinion of Mr. Justice Temple in
Eatz V. Walkinshaw :

''The proprietor may make a reasonable use of his own land*,
although in so doing he obstructs or changes the percolation of
water to or from his neighbor's land" (at page 146). **The pe-
culiar nature of the property which enables one to take it by
drainage does not justify the taking save in the usual and rea-
sonable use of his own land — ^in other words, for the proper use
and betterment of his own property" (at page 147). Concerning
a passage in Hanson v. McCue^ he says (though not citing that
ease) : ''It is said one could not clear or cultivate his land or build
a house without interfering with percolat'ing water, and, even if
rights were admitted to exist, the difficulty of enforcing them would
be insurmountable. I think I have shown that the admitted right
to a reasonable use of the land and of the water answers all these
objections. To my mind, this is so obvious that I can but wonder
that such objections have ever troubled the judiciary." Com-
menting upon Acton v. Blundell he says: "The court instructed
the jury 'that, if the defendants had proceeded and acted in the
usual and proper manner in the land for the purpose of working
and mining a coal mine therein, they might lawfully do so. ' This
instruction was held to be correct, and that is the real force and
effect of the decision." .... "In Acton v. Blundell, as has been
said, the working of a mine upon an adjoining estate drained cer-
tain springs on plaintiff's land. It would have been sufficient
to defeat plaintiff's action to have said that the working of a coal
mine in a proper manner is a reasonable use of land, and that it
was without malice, or an intent to injure plaintiff. It is a gen-

28 42 Cal. 303, 10 Am. Bep. 299.

376

REASONABLENESS.

581

eral rule — ^in fact, a universal principle of law — that one may
make reasonable use of his own property, although such use re-
sults in injury to another.'*^

A similar explanation regarding mining had been made before
Katz V. Walkinshaw by McParland, J., dissenting, in Southern
Pacific Co. V. Dufour •'^'^ (referring to Wheatley v. Baugh) : ^^ **The
facts were that *a mining corporation, in the course of necessary
operations in mining minerals from their own land, interrupted
the percolatipns which supplied a spring on an adjoining tract';
and of course the court held that where a miner, working his mine
in the usual way, internipts percolating underground water, the
result is incidental to the lawful use of his. land, and if it causes
loss to an adjoining proprietor, such loss is damnum absque in-
juria.*^ .... ** Nearly all the cases in which the disturbance of
percolating water has been held harmless have been cases where
the party charged has dug a well or worked a mine or made some
other excavation in the lawful enjoyment of the ordinary use of
his land, and where the loss to the complaining party was merely
incidental to such use, and not the result of a direct intent to
cause such loss."

The civil law considered mining within the principle of the im-
provement of the land in this connection, and not actionable.'^

Whether, under the new rule, mining or drainage will be a
justifying use, cannot, however, be said. It seems to have been
held wrongful in some cases where the mine shaft by percolation
diminished the flow of a stream by intercepting percolations trib-
utary to the stream,*'^ or the sub-flow of a stream.** Likewise

20 The same comment was made
upon Acton v. Blundell in the opinion
of Lord Wensleydale (Baron Parke),
virtually dissenting, in Chasemore v.
Kiehards, 7 H. L. Cas. 387, saying:
* * The case of Acton v. Blundell would
be rightly decided upon this ground,
because the injury to plaintiff ^s well
was caused by the lawful exercise of
the defendant 's right to get the miner-
als in his land. ' * In Salt Union etc. v.
Brunner (1906), 2 K. B. 832, Lord
Alverston, Chief Justice, said the
principle of Acton v. Blundell was
**that the exercise of a lawful right
of mining does not become unlawful
because it may injure adjoining prop-
erties. * '

w 95 Cal. 616, 30 Pac. 783, J9 L.
R. A. 92.

31 25 Pa. St. 328, 64 Am. Dec. 721.

^ Lord Wensleydale in Chasemore
V. Richards.

•w Cole Silver Min. Co. v. Virginia
•etc. Co., 1 Saw. 470, Fed. Qkb. No.
2989; Cross v. Kitts, 69 Ckl. 217, 58
Am. St. Rep. 558, 10 Pac. 409;
Herriiimn etc. (*o. v. Butterfield etc.
Co., 19 Utah, 453, 57 Pac. 537, 51 L.
R. A. 930. But contra, Acton v.
Blundell.

34 Copper etc. Co. v. Wabash etc.
Co., 114 Fed. -991.

582 UNDERGROUND WATER. § 377

Shaw, J., in Katz v. Walkinshaw,^ discussing Cross v. Kitts,^
considers that case as deciding that a miner cannot cut off the per-
colations which feed a stream, though done in the legitimate work
of mining his own land, and approves Cross v. Kitts on that ground
(though in fact there was in Cross v. Kitts the added element of
a grant between the parties).

If excavation on one's own land is offered in justification, it
must, at all events, be done in good faith for the benefit of the
land, and not merely to injure the neighbor .^^

§ 377. As Affected by Degree of Damage. — ^Having thus
reached, in any case, a conclusion upon what is a fit purpose to
justify the damage, it becomes entirely a question of degree how
far that purpose may be carried out and still remain damnum ab-
sque injuria. Though one's own irrigation (or, if we are correct,
mining) is permissible though it does damage, yet an excessive
taking even for a fit purpose ceases to be damnum absque injuria.
For example, if a complaining irrigator suffers damage, the other's
irrigation on his own land is a proper defense,- yet not to the ex-
tent of taking the entire water supply, though for his own ir-
rigation upon his own land. It is a defense only to a reasonable
degree, which degree must be determined by the comparative neces-
sities and comparative hardships. The question is, as at the com-
mon law of riparian rights, to be determined upon the rights and
necessities of both parties in equality of consideration upon all
surrounding circumstances. This is the idea running through all
the recent California cases, though not as yet actually decided be-
cause no case of excessive use between two contestants both using
the water on their own land has arisen. (The complaint has, as
yet, been only against distant use off the land; an improper pur-
pose, if it does damage, regardless of the degree of damage.)

A recent New York case^ is really to this effect. It was held
that a landowner at the famous Saratoga Springs cannot pump
mineral water from a well, though for use of a sanatorium on his
own land, to such an extent as entirely destroys a spring on his

36 141 Cal. 116, at 129, 99 Am. St. Bartlett v. O'Connor (Cal.), 36 Pac.

Rep. 35, 70 Pac. 663, 74 Pac. 766, 64 513 (a drainage ditch). Cf. Park«r

L. B. A. 236. V. Ijaraen, 86 Cal. 236, 21 Am. St.

36 69 Cal. 217, 58 \m. St. Rep. . Rep. 30, 24 Pac. 989.

558, 10 Pac. 409. 38 Hathorn v. Sanatorium, 106 N.

37 St. Amand v. Lehman, 120 Ga. Y. Supp. 554.
9^>3, 47 S. E. 949 (a case of blasting) ;

S 378

BEA80NABLEKESS.

588

neighbor's land. While thus deciding the rule of reasonable use,
the opinion says^ ^^The doctrine of reasonable use has no applica-
tion to percolating water/' It rests the decision on the ground
that the new modification of the English rule consists in prohibit-
ing the use of pumps or similar apparatus which put a compul-
sion on the water in the neighbor's land instead of leaving it to
natural laws, and says that such compulsion is unlawful for what-
ever purpose or place of use or degree of damage. This would be
going to just as extreme a position in one direction as Acton v.
Blundell went in the other. The decision might well have rested
on the excessive degree of defendant's taking, as not being a rea-
sonable use, though for and on his own land.

The proper purpose is thus a justification of damage only to a
reasonable degree, as in regard to '^artificial uses" under the law
of riparian rights. It is not likely that any preference will be
given to '^ natural uses" whereby the degree of damage is passed
by and only the purpose regarded; for even at common law this
classification is being abandoned, and no purpose of use is sanc-
tioned beyond a reasonable degree to be determined on the facts
of each case, as elsewhere discussed.^

§ 378. Importance in Mining Begions. — This is of great im-
portance to miners, because their works are likely to drain wells
and springs and even streams in the neighborhood. As an eminent
authority says: '^'In sinking a shaft through permeable ground it
is, of course, necessary to. lift continuously the ground water. The
water level thus acquires an inclination toward the shaft, which
may thus receive not only the flow of the immediate vicinity, but
even also that of neighboring river systems. " ^

In an early California case the bearing of the law of percolating
water upon mining was adverted to, saying: ** These are grave

39 Supra, Part IL

40 Posepny on Ore Deposits (Amer-
ican Institute Mining Engineers),
page 19. The following is an ex-'
ample of what is sometimes necessary
in mining, and applies to other min-
ing as well as coal mining: ''The
importance of the water problem in
connection with anthracite mining is
well shown bj the fact that there
are a number of pumping stations
having capacities of from 5,000,000 to

10,000,000 gallons per day. The Oil-
berton water-shaft of the Philadelphia
& Beading Co. is about 1,000 feet
deep and is equipped with hoisting
buckets. The capacity of the plant
is 7,000,000 gallons per day, and it is
designed to drain the entire basin
operated from the Draper and Gil-
berton collieries." Transactions of
the American Institute of Mining En-
gineers, vol. 34, p. 523.

584 UNDERGROUND WATER. § 378

questions which the exigency of the present case does not require
us to decide.'*'*^

If mining is not a justifying purpose of use to a reasonable ^
degree as above set forth, then the miner would be practically an
insurer to agriculturists against damage to crops from failure of
water supply and it may be doubted whether even the results in
extraordinarily dry seasons (i. e., ''vw major'' or "act of God")
could be excepted. This result was one of the reasons given in
Acton V. Blundell ^ for holding as it did, saying :

"In the case of the running stream, the owner of the soil merely
transmits the water over its surface; he receives as much from his
higher neighbor as he sends down to his neighbor below; he is
neither better nor worse ; the level of the water remains the same.
But if the man who sinks the well in his own land can acquire by
that act an absolute and indefeasible right to the water that col-
lects in it, he has the power of preventing his neighbor from mak-
ing any use of the spring in his own soil which shall interfere with
the enjoyment of the well. He has the power, still further, of de-
barring the owner of the land in which the spring is first found,
or through which it is transmitted, from draining his land for the
proper cultivation of the soil | and thus, by an act which is volun-
tary on his part, and which may be entirely unsuspected by his
neighbor, he may impose on such neighbor the necessity of bear-
ing a heavy expense, if the latter has erected machinery for the
purposes of mining, and discovers, when too late, that the appro-
priation of the water has already been made. Further, the ad-
vantage on one side, and the detriment to the other, may bear no
proportion. The well may be sunk to supply a cottage, or a
drinking-place for cattle; whilst the owner of the adjoining land
may be prevented from winning metals and minerals of inestima-
ble value. And, lastly, there is no limit of space within which
the claim of right to an underground spring can be confined; in the
present case, the nearest coal-pit is at the distance of half a mile
from the well; it is obvious the law must equally apply if there
is an interval of many. miles." ^

When one further decision is. considered, it appears that the
law of waters would be taking a form that leaves the miner at a
decided disadvantage in controversy with his agricultural neigh-

« Hak V. MeLea, 53 Cal. 578, « See, also, WbcaUey v. Bangh,

42 12 Mees. ft W. 324. 25 Pa. St. 532, 64 Am. Dee. 721.

378a

REASONABLENESS.

585

bors.** Not only would the miner be liable if the water is taken
from wells, etc., but, on the other hand, he must suffer the percola-
tion of waste water from irrigation into his mines, and has no right
of action even if the water comes through in such quantities as to
prevent the working of the mine. It was so held in Gibson v.
Puchta.'** The result would be that the miner must not take water
from the farmer's land, but the farmer is not reciprocally bound
to keep the water out of the miner's works. It would join with the
''Debris Cases" in showing sharply that mining has ceased to be
the paramount industry in California, and that agriculture has
taken its place.

The relation of the new rule to mining is one of the many
phases of the new doctrine of percolating water that the case of
E'atz V. Walkinshaw has thrown open, and that await decision.
Under Mr. Justice Temple's view mining would be a proper pur-
pose and the withdrawal of percolating water thereby (at least,
to a reasonable degree) not wrongful, though it damages the far-
mer. The irrigation case cited above (Gibson v% Puchta) went
on the ground that the defendant's purpose or motive arose out of
the undoubted right to cultivate and irrigate his land. If the pur-
pose or motive is looked into on one side, it should also be looked
into on the other. If the motive to. make profit by cultivating and
planting in the ordinary way justifies the farmer in irrigating,
though he damages the miner, the' motive to profit by mining in
the ordinary way should justify the drainage of percolating water
naturally incident to that (at least, to a reasonable degree).
Any damage which occurs would then lie where the nature of the
land as mineral or agricultural makes it fall.^

§ 378a. MiBcellaneous Rulings. — We give here some of the
various rulings in recent cases from many jurisdictions other than
California laying down the doctrine of reasonable use.

As between two parties both seeking local use, it has been held
proper for defendant to use the water for hotel purposes,*'^ or for

« See Harv. L. Rev. 46.

M 33 Cal. 310, quoted supra, sec.
163. A somewhat similar decision ap-
pears in Lisonbee v. Monroe, 18 Utah,
343, 72 Am. St. Rep. 784, 54 Pac.
1009. But semble contra, Parker v.
Larsen, 86 Cal. 236, 21 Am. St. Rep.
30, 24 Pac. 989, dictum,

M That the common law is coming
to regard motive in justification of

ilamage in other branches of the law
is seen in the decisions looking to the
purpose or motive of a combination in
labor troubles, strikes, and boycotts.
See 18 Harv. Law Rev. 411, 423, 444.
*7 St. Amend v. Lehmaif (Ga.), 47
S. W. 949; Hamby v. City of Daw-
son (Ky.), 104 S. W. 259; Pence v.
Carney (W. Va.), 52 S. E. 702.

586

UNDEBGBOUXD WATEB.

f 378m

a pnblic bathhoiLse.^ For proper purposes by both on their own
land, each must not take more than a reasonable share.^

Waste is not proper either against a neighbor seeking nse on his
own landy^ or even against another seeking distant nse off his land,
snch as a city supply water company, or a bottling company ship-
ping mineral water away for sale.'^

Lowering of water plane seventy-five feet so as to make the water
inaccessible has been held ground for injunction ; ^ but not a low-
ering of only ten feet, the water still remaining readily accessible.''

That the water lay in an underground reservoir (artesian or
otherwise) was made a point in some of the cases.'^

Some cases laid stress on the fact that the party complained
of knew the probable results in advance, and proceeded anyway,
though without any ill-will toward the other party .^

The New York cases have laid stress on the fact that the means
of use (heavy pumps) were excessive, putting a compulsion upon
the underground water, effcfcting an extralateral trespass similar to
the cases of explosions on blasting.^

Some of the cases have laid stress on actual malice; such as a
desire to ruin a neighbor, or to make him buy out the defendant.^

The measure of damages for loss of underground water is held
to be the loss of rental value of the land, and not the value of pro-
ducible crops.'**

« Waiia V. City of Perry (Iowa),
60 N. W. 728.

« Pence v. Carney (W. Va.), 52
8. E. 702. Either may take all,
gemble, Hoaston By. y. ESast (Tex.),
81 8. W. 279; ForbeU v. N. Y., 164
N. Y. 522.

00 Gagnon v. French etc. Co. (IncL),
72 N. £. 849; Barclay v. Abraham
(Iowa), 96 N. W. 1080.

51 Pence v. Carney (W. Va.), 52
8. £. 702; St. Amond ▼. Lehman
(Ga.), 47 a%W. 949; StiUwater Co.
V. Farmer ^^dinn.), 93 N. W. 907.

52 Willis V. Ojty of Perry, 60 N. W.
728.

53 Newport v. Temescal W. Co., 149
Cal. 531.

54 Pence v. Carney (W. Va.), 52
8. E. 702; Barclay v. Abraham
(Iowa), 96 N. W. 1080; Erickson v.

Crookston W. Co. (Minn.), Ill N.
W. 393; Katz v. WaUdnshaw, 141
Cal. 116.

55 Dickinson v. Grand Junction etc.
Co., 6 Ex. 301; Smith y. Brooklyn,
18 N. Y. App. Div. 340; Forbell v.
New York, 164 N. Y. 522. See, also,
Houston Ry. ▼. East (Tex. Sup.), 81
S. W. 279.

56 Smith V. Brooklyn, 18 N. Y. App.
Div. 340 ; Smith v. Brooklyn, 16 N. Y.
257; ForbeU v. New York, 164 N. Y.
522; Hathome v. Sanatorium, 106 N.
Y. Supp. 544.

57 Gagnon v. French etc. Co. (Ind.),
72 N. E. 849; St. Amond v. Lehman
(Ga.), 47 S. W. 949; Hamby v. City
of Dawson (Ky.) 104 S. W. 259.

58 Eeisert v. N. Y., 164 N. Y. 522.
See, also. Fed. Cas. No. 3864.

§ 379 PERCOLATING WATER. 587

CHAPTER IV.

PERCOLATING WATER (CONTINUED).

§ 379. Difficulty of application of the rule.

§ 380. New rule compared to riparian rights.

§ 381. .New rule and the law of appropriation.

§ 382. Same.

§ 379. Difficulty of Application of the Rule.— The supreme
court of the United States recently said:* ** Indeed, the extent to
which seepage operates. in adding to the flow of a stream, or in dis-
tributing water, through lands adjacent to those upon which water
is poured, is something proof of which must necessarily be almost

impossible The underground movement of water will always

be a problem of uncertainty.*'

The difficulty was so great in determining the exact amount of
diminution that the trial court in Montecito etc. Co. v. Santa Bar-
bara^ attempted to shirk the duty and to leave the matter out of
its judgment, relegating the parties to future litigation. The
court must make a specific finding of the amount of diminution
caused.^ The difficulty will be specially great in mining cases,
if mining is held no justification. When it comes to showing
specifically an underground connection causing the loss of percolat-
ing water from, a well, it is likely that we shall have the same
elaborate and indefinite discussions that have surrounded the min-
ing suits to protect extralateral rights to a vein ; to show an under-
ground geological connection between the ore in one's shaft, and
the ore in distant works of a trespasser, has always been a diffi-
cult undertaking. In one case already the court complained that
the evidence was highly technical, and enough to fill a volume of

. 1 Kansas v. Colorado, 206 U. S. 46, Pac. 849; Cohen v. La Canada Water

51 L. ed. 956, Brewer, J. Co., 142 Cal. 437, 76 Pac. 47; Ver-

2 144 Cal. 578, 77 Pac. 1113. dugo W. Co. v. Verdugo (Oil. Sup.,

8 Montecito W. Co. v. Santa Bar- Jan. 23, 1908), 93 Pac. 1021; Pomona

bara, 144 Cal. 678, 77 Pac. 1113; Mc- W. Co. v. San Antonio W. Co. (Cal.

Clintock V. Hudson, 141 Cal. 275, 74 Sup.), 93 Pac. 881.

588

UNDERGROUND WATER.

§§ 380, 381

the reports.^ Nevertheless, in all branches of the law of waters,
difficulties arise, and the courts must deal with them, however great
their intrinsic difficulty.*^

Percolating water differs through facts of nature from surface
streams. Percolating water must always remain a hidden, in-
visible, secret thing. Where it is and how it moves in any given
locality must always be more a matter of inference than of proof,
in which conjecture must exceed knowledge. It is doubtful
whether any very detailed system of law can fit upon so hidden and
formless a thing.

f
§ 380. New Bole Compared to Riparian Bights. — In that the

new rule leaves the substructure of the old law intact, it differs

from riparian rights at its foundation In still regarding the corpus

of percolating water as property; so that the right is not a

** usufructuary" one as is the right of the riparian proprietor; —

not a right of use, but an ownership of the water as a substance.

The right of the party complained of is like the riparian right,
in that it is a right to cause damage only for a fit purpose, viz. :
the use of one's own land, and that, only to a reasonable degree
of damage to be decided on the facts of each case. If as to
streams a non-riparian diversion is a wrong per se to a riparian
proprietor, then the new rule of percolating water differs from the
rule of riparian rights, and demands a showing of at least possible
damage to complainant and possibility of use by him.

How far it is a right in the complaining party, which, like the
riparian right, exceeds actual need for present use, and survives
non-use, remains to be seen.

In the second Cohen case the right is called (as the riparian
right is called) a ** natural right."

§ 381. The New Rule and the Law of Appropriation. — Aside
from the opinion of Mr. Justice Shaw in Katz v. Walkinshaw,

* Newport v. Temescal etc. Co., 149
Cal. 531, 87 Pac. 372, 6 L. R. A., N.
S., 1098.

5 Butte et<'. Co. v. Vaughn, 11 Cal.
143, 70 Am. Dec. 769; Bear River etc.
Co. V. New York, 8 Cal. 327, 68 Am.
Dee. 325. In Katz v. Waiklnshaw,
Mr. Justice Shaw said: "The objec-
tion that this rule of correlative rights
will throw upon the court a duty im-
possible of performance — that of ap-

portioning an insufficient supply of
water among a large number of users
— is largely conjectural. No doubt
eases can be imagined where the task
would be extremely difficult, but, if
the rule is the only just one — as we
think has been shown — ^the difficulty
in its application in extreme cases is
not a sufficient reason for abandon-
ing it and leaving property without
any protection from the law.*'

§ 382

PERCOLATING WATER.

589

the California court has not again discussed the law of appro-
priation in this connection, and has shown a disposition not to let
it enter into the discussion. But it cannot be kept out, as it must
inevitably enter when an appropriated surface stream is involved
on the facts, just as in Lux v. Haggin it forced itself into the
discussion of riparian rights. What will be the effect when an ap-
propriated surface stream is being depleted by a well the writer
does not think the decisions enable one to say with certainty.
Such questions suggest themselves as these : Since a stream appro-,
•priation gives an exclusive right (as opposed to the ''reasonable-
ness"— **correlativeness"— of 'riparian rights), will it exclude the
interfering use by the well-owner in all cases? If not, then in
which of the following variations: Where only the stream appro-
priation is for distant use? Where only the well is for distant
use? Where neither is for distant use? Where both are for dis-
tant use? Again, will it make any difference where the stream
appropriation is on public land prior to the passing of the well-
owner's own land into private title? Or that the well is on public
land prior to the stream appropriation? Or is on public land
prior to the passing of stream riparian lands into private title ? ®

§ 382. Same. — Even where no surface stream appropriation is
involved, what will be the result where both parties seek use off
their land? If the old law has, as we believe, been only modified
and not abrogated, then probably neither may waste the water,^
but otherwise will possibly be left to the usual law of damnum
absque injuria, Mr. Justice Shaw says they will be treated as ap-
propriators under the law of appropriation as it arose on the
public domain; saying in Katz v. Walkinshaw : "^^ "The prin-
ciples which, before the adoption of the Civil Code, were ap-
plied to protect appropriations and possessory rights in visible
streams, will, in general, be found applicable to such appro-

0 To some of these qpestions an-
sweTB were given by Mr. Justice Shaw
in Katz v. Walkinshaw, though ad-
mittedly not involved in the decision
of the case. Aside from this, the
recent decisions do not bear upon these
questions. Mr. Justice Shaw's treat-
ment of these questions we have al-
ready stated above.

7 See Pence v. Carney, 58 W. Va.

296, 112 Am. St. Rep. 963, 52 S. E.
702, 6 L. B. A., N. S., 266; Still-
water Go. V. Farmer, 89 Minn. 58, 99
Am. St. Bep. 541, 93 N. W. 907, 60
L. R. A. 875; Merrick W. Co. v.
Brooklyn, 53 N. Y. Supp. 10, 32 App.
Div, 454.

7a 141 Cal. 116, 99 Am. St. Bep.
35, 70 Pac. 663, 74 Pac. 766, 64 L. B.
A. 236.

690 UNDERGROUND WATER. § 382

priators of percolating waters, either for public or private use,
on distant lands, and will sufSce for their protection as against
other appropriators. Such rights are usufructuary only and the
first taker who with diligence puts the water in use will have the
better right.*' But in Montecito W. Co. v. Santa Barbara,® Mr.
Justice Henshaw says that such a case is not within the principle
of Katz V. Walkinshaw at all, which concerned only the use of
one's own land.

In Utah and other States the law of appropriation is not applied
to percolating water, though appropriation is the sole law of sur-
face streams. One who had sunk a well on public land was held
in Utah to have a right of entry thereon as against a subsequent
settler, but adding: **This right of an appropriator is, of course,
subject to the rule of law which will permit the owner to sink
an adjoining weU on his own premises, although he should thereby
dry up that of the first appropriator. "•

Our own belief is, in a general way, that no exclusive right under
the law of appropriation, whether* appropriation of a stream or
appropriation sought by a well will be permitted to defeat the
reasonable use of one's own land; that the principle of exclusive
right (the law of appropriation) will be the one to give way when-
ever it conflicts (which it will whenever it meets) with the prin-
ciple of reasonable use of one's own land. Lux v. Haggin solved
the conflict as to surface streams by looking to priority upon the
public domain, but as to percolating water the lands likely to be
involved are all now in private hands. As to streams on such
private lands, the reasonable use of riparian rights prevails in
California against exclusive appropriation to-day; and we believe
it will also do so with regard to percolating water in any case of
conflict. But there are no recent actual decisions upon any of the
above states of facts.

8 144 CaL 578, 77 Pac. 1113. 619; Howard v. Perrin, 8 Ari*. 347,

9 SuHivan v. Northern Spy Min. Co., 76 Pac. 460 ; S. C, 200 U. 8. 71, 50
11 Utah, 438, 40 Pac. 709, 30 L. R. ^ L. ed. 374, 26 Sup. Ct. Rep. 195; Wil-
A. 186. To the same effect, though low etc. Co. v. Michaelson, 21 Utah,
on public lands, Deadwood etc. Co. 248, 81 Am. St. Rep. 687, 60 Pac.
V. Barker, 14 S. Dak. 558, 86 N. W. 943, 51 L. R. A. 280.

PART IV.

SUPEEVISION AND DETERMINATION OF RIGHTS
UNDER IRRIGATION CODES AND STATUTES.

CHAPTER I.

SUPERVISION AND ADMINISTRATION.

§ 383. Legislation.

S 384. Same.

§ 385. SuperriBion of State.

§ 386. Intermediate subdivisions.

§ 387. Primary subdivisions.

§ 388. Police regulations.

§ 389. Actions by and against officials.

§ 390. Comments of Department of Agriculture.

f 391. Water Commissioners and State Engineer in California.

§ 383. Legislation. — As elsewhere herein set forth, Wyoming
legislation has developed a system of State water supervision and
administration whieh was adopted in Nebraska and other States,
and now forms the basis of the irrigation code system in this re-
spect. For these Wyoming provisions reference must be made
to the statutes' in a later part of this book. In one Wyoming
case it is said : ''In the progress of our legislation in respect to the
use of water for irrigation and other beneficial purposes, the
significant feature of the changes and additions from time to time
has been the principle of centralized public control and regulation.
One can hardly fail to be impressed with the gradual tendency
exhibited in the various acts toward the greater effectiveness of
public 'supervision. ' * *

1 Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 87 Am. St. Bep. 918, 61
Pac. 258, 50 L. R. A. 747.

(591)

592

SUPERVISION AND DETBBMINATION OF RIGHTS. § 383

The possibility of supervising legislation is sometimes questioned
where there are constitutional provisions declaring waters the
property of the public, and that no person shall be denied the right
to appropriate, following the Colorado constitution. This has
never been positively passed upon in Colorado in this connection,
but there is strong opinion in this State that such provisions pre-
vent supervision in the acquiring of appropriations, or at least
prohibit the rejection of applications; and may otherwise restrict
supervision. Decisions on analogous provisions are given in the
note, seeming against this contention.^

Concerning the general effect of this legislation it has been held
limited to the scope of the police power of the State,^ and cannot,
under the guise of regulation, cut down the vested rights of prior
appropriators or put them to unnecessary inconvenience to suit
the benefit of subsequent appropriators.* Where parties have cer-
tain rights measured by time, water commissioners cannot impose
a new apportionment by extent of land ; for to do that would be to
change the water rights themselves.^ Their authorization cannot
legalize a wrong upon prior claimants,® nor abridge their rights^
Adverse rulings of ofScials may be questioned in court by injunc-
tion.®

2 Power to authorize irrigation cor-
porations organized under New Mexico
act of February 24, 1887, to take
and divert surplus public waters oyer
and above the needs of prior appro-
priatorSy was not denied to the legis-
lature of that territory by the proviso
in the Desert Land Act of March 3,
1877, 19 Stats, at Large, 377, chapter
107 (U. S. Corap. Stats. 1901, p.
1549), that surplus water on the pub-
lic domain shall remain and be held
free for the- appropriation and use
of the public for irrigation, mining,
and manufacturing purposes, subject
to existing rights. Gutierres v. Al-
buquerque etc. Co., 188 U. S. 545, 47
L. ed. 588, 23 Sup. Ct. Bep. 338. A
provision in a constitution that all
navigable waters shall forever remain
public highways does not interfere
with whatever power the State would
otherwise have over such waters.
Manigault v. Springs, 199 U. S. 473.
50 L. ed. 274, 26 Sup. Ct. Rep. 127.

3 Farmers' etc. Co. v. Agric. etc.

Co., 22 Colo. 513, 55 Am. St. Bep.
149, 45 Pac. 444.

4 Farmers' etc. Co. v. Cozad etc.
Co., 65 Neb. 3, 90 N. W. 951; Farm
Inv. (;o. V. Carpenter, 9 Wyo. 110, 87
Am. St. Bep. 918, 61 Pac. 258, 50
L. R. A. 747; Willey v. Decker, 11
Wyo. 496, 100 Am. St. Bep. «39, 73
Pac. 210.

0 Wilfong V. Bailey, 3 Hawaiian
Rep. 479.

6 Lakeside Ditch Co. v. Crane, 80
Cal. 181, 22 Pac. 76.

7 Chamock v. Bose, 70 Cal. 189, 11
Pac. 625.

8 WiUey v. Decker, 11 Wyo. 496,
100 Am. St. Bep. 939, 73 Pac. 210;
Trade Dollar etc. Co. v. Fraser
(Idaho), 148 Fed. 587. See, also,
Waha Co. v. Le^nston Cb. (Idaho),
158 Fed. 137. Beference should also
be made to other chapters of this
book. See suprcL, Part I, c. Vlll,
infra, Part IV, cc. II, III, and suprct,
sees'. 182, 183.

§§ 384, 385

ST7PEBYISI0N AND ADMINISTRATION.

593

§ 384. Same. — ^All waters are, in States adopting irrigation
codes, declared subject to the control of the State for the benefit
of the people, though the form of words differs: ''Dedicated to
the use of the people";® or ** Water for irrigation is a natural
want," and the works therefore are ** Works of internal improve-
ment";^^ or ''Are subject to regulation and control by th«
State."" **The use of water for a beneficial purpose is a public
use."^^ In the Idaho constitution it is declared that the use of
water is a public use, and subject to the regulation and control of
the State.^^ Similar provisions exist in most States.

§ 385. Supervision of State. — The general supervision over
the whole State is placed either in .a special board or in the State
Engineer. For example, it is in a State Board of Irrigation in
Nebraska,^^ consisting of the governor, attorney general, and com-
missioner of land;^^ a State Board of Irrigation in Nevada, con-
sisting of the governor, attorney general and surveyor general ; *®
in a State Board of Control in Wyoming, consisting of a State
Engineer and division superintendents.^'^ It is in the State En-
gineer in Colorado ^^ and Utah.*® There is in Idaho a State Board
of Irrigation consisting of the State Engineer and the three water
commissioners; but the functions of this board seem less than
in the other States where boards are constituted. They meet once
a year, no session exceeding five days.^

In exercising this general supervision, general co)itrol may be
exercised over all the waters, surveys and inspections made, and
general rules and regulations established, and the administration
of prioritieB (as elsewhere determined) provided for.

Where the general control is in a board, an executive officer
is also provided having general powers to see to the execution of
the orders of the board. This is the State Engineer in Nevada ; ^*

» Colo. Const., art. 16, sec. 5. *

10 Neb. Comp. Stats. 1903, 6456,
6473, for which bonds maj be voted
by townships; Commings v. Hyatt, 54
Neb. 35, 74 N. W. 411.

11 Nevada Comp. Laws J900, sec.
354.

12 Utah Stats. 1905, c. 108, sec. 50;
and see W70. Const., art. 1, sec. 13;
and declarations of State ownership,
atite, sec. 25.

IS Idaho Const., art. 15, sec. 1.
Water Rights — 88

H Comp. Stats. 1903, sec. 6412.

16 'Ibid.

10 Stats. 1901, p. 72. The State
Engineer was added as a member in
1907, p. 30, sec. 21.

17 Wyo. Const., art. 8, sec. 2.

18 3 M. A. S., 1905 ed., 2447h,
2286c; M. A. S. 2459.

10 Stats. 1905, c. 108, sees. 1-3.

20 Stats. 1903, p. 223, sec. 22.

21 Stats. 1903, p. 18, sec. 5.

594 SUPEBVISION AND DETERMINATION OP BIGHTS. §§ 386, 387

in Nebraska it is the secretary of the board, also called State En-
gineer ; ^ in Wyoming it is the State Engineer, who is the presi-
dent of the Board of Control.^

§ 386. Intermediate Subdiyisions. — ^The whole State is usually
divided into intermediate subdivisions. These are called water or
irrigation divisions, and an executive officer is provided for each
division. For example, in Colorado they are called irrigation
divisions, of which there are five, and the executive of each ia
called ** irrigation division engineer.**^ In Nebraska there are
two, called ''water divisions," and the executive officer for each
is called ''under-secretary for the division."^- In Utah there are
five, called "water divisions," and the executive officer for each is
called ** division superintendent."^ In Wyoming there are four,
called "water divisions," and the executive for each, called "divi-
sion superintendent."^ The State in Idaho is, by the statute,
divided into three water divisions, numbered 1, 2, 3, with one
"water commissioner" for each division, to hold office for six
years.^ The division executive has general control over the
waters within his division, similar to that of the State Board or
State Engineer over the State, and may make rules and regula-
tions for his division, subject to the control of the higher authori-
ties and appeal to them.

§ 387. Primary Subdivisions. — ^The direct primary adminis-
tration rests in a further and subordinate subdivision of the
divisions into districts, with an executive officer for each district.
Thus, in Colorado these districts are called "water districts"
(called "unincorporated," to distinguish them from irrigation
districts based on the Wright Act of California). There are
sixty-eight of these established by statute, according to the loca-
tions of water supplies.^ The executive for each is called "water
commissioner."^ In Nebraska the State Board of Irrigation
may create water districts as necessity arises, and the executive
officer thereof is called "under-assistant for the district. "^^ In

22 Oomp. Stats. 1903, sec 6425. 27 Goxist., art. 8, sec 4; Bev. Stats.,

28 Wyo. Const., art. 8, sec. 5. 848.

24 3 M. A. S., 1905 ed., 2440 et 28 Stats, supra, sees. 13-18.

■eq. 29 M. A. S. 2310 et seq.

26 Oomp. Stats. 1903, sees. 6409, 30 M. A. S. 2384, 2381.

6419, et seq. 81 Comp. Stats. 1903, sees. 6441,

»l Stats. 1905, c. 108, sees. 26-30. 6442.

§ 388

SUPERVISION AND ADMINISTBATION.

595

Nevada, the State Board of Irrigation shall divide the whole State
into subdivisions, called ** water subdivisions/' the executive for
each being called ''water commissioner.'* ® In Utah the State En-
gineer shall subdivide the divisions into districts as necessity
arises, appointing one executive called ''supervisor" for each.^
In Wyoming, the State Board of Control may subdivide the divi-
sions into water districts as necessity arises, with one water com-
missioner for each district.^ In Idaho the Board of Irrigation
shall divide the State into "water districts" from time to time
as priorities become adjudicated, with one "master" for each,
appointed by the water commissioner of the division and holding
ofSce for one year; in some cases elected by the .appropriators.^

With the executive of the district lies the direct immediate super-
vision of the owners, and direct administration and control of the
use of the waters, and the enforcement of the rules and regulations
of his superiors, subject to appeal to them.

A water commissioner in Colorado has authority between com-
panies or carriers, but not over consumers from the same ditch.^**

§ 388. Police RegulationB. — ^To enable the district executive
to perform his duties, owners are required to keep headgates and
measuring devices, so that the water may be measured, shut off, etc.
A failure to maintain such devices is punishable criminally in Ne-
braska,^ and Utah,*^ and in Wyoming, Nebraska and Colorado
the water may be shut off.^ In general, obstru^cting the work
of the ofBcials is punishable criminally.^ The district officers
may make arrests in Colorado, Nebraska and Wyoming.'*^ Waste
of water is punishable criminally in Colorado, Nebraska and

32 stats. 1901, p. 72. The Statute
of 1907, page 30, section 22, pro-
vides for both divisions and districts,
before which there was only one sub-
division of the State in Nevada, in-
termediate division being omitted.

38 Stats. 1905, c. 108, sec. 26 et seq.

34 Rev. Stats. 888, 889.

35 Stats, (supra), sees. 23, 24.

35a Cache La Poiidre C/o. v. Hawlej'
(Cblo.), 95 Pac. 317. Cf, sec. 404,
infra.

36 Comp. Stats. 1903. sees. 6443,
6445.

37 Stats. 1901, c. 100, sec. 53.

88 Wyo. Stats. 1901, p. 99; Neb.
Comp, Stats. 1903, sec. 6443; Colo.
3 M. A. S., 1905 ed., 2286.

39 Neb. Comp. Stats. 1903, sees.
6407, 6443, 6445; Nev. Stats. 1903,
p. 18, see. 20; Utah Stats. 1905, c.
108, sec. 64; Wyo. Rev. Stats. 971;
Stats. 1901, p. 95; Idaho Stats. 1907,
p. 237. See Robertson v. People
(Colo.), 90 Pac. 79.

40 Colo. M. A. S. 2366, 2384, 2386;
Neb. Comp. Stats. 1903, sec. 6443;
Wyo. Rev. Stats. 972.

596 SUPERVISION AND DETERMINATION OF RIGHTS. §§ 389, 390

Nevada.*^ Similar provisions exist in Idaho; and in the other
States and Territories having irrigation codes.*^

§ 389. Actions by and Against Officials. — ^A water commis-
sioner is a public ofScial ; ^^ and may be enjoined like other officials
if acting in excess of his authority.^ In an action to enjoin a
water commissioner from diverting water from a stream, the per-
sons for whose benefit it is diverted are necessary parties.*** Offi-
cials having power to shut off water ciannot be held for damages
for failure to do so in the absence of notice of wrongdoing.*® A
water commissioner has no jurisdiction outside his district, and
cannot claim compensation for work performed beyond its bound-
aries, though the headgates of such outside ditches are within his
district.'*'^ Nor can a county with no irrigated land within a cer-
tain water division be forced to contribute to the salary of the
superintendent of that division.** To hold lands for the salary
of irrigation officials, the lands must not only be within the water
district but must be irrigated by its waters.*®

§ 390. Comments of the United States Department of Agricid-
ture. — ^As this legislation is comparatively recent and not exten-
sively as yet reviewed by the courts, some quotations concerning
its operation are appended from Bulletin 168. of the United States
Department of Agriculture, entitled, "The State Engineer and
His Relation to Irrigation. "

Colorado, — * * These records have never been kept up by the com-
missioners, the reasons usually assigned being that the county
conunissioners, who must allow the bills of the water commis-
sioners, have refused to pay for the time necessary for the collec-
tion of the data required. The commissioners have been repeatedly
urged to collect the information while about their other duties, but

41 Colo. M. A. S. 2384; Neb. Comp.
Stats. 1903, sec. 6407; Nev. Comp.
Laws, 1900, sees. 430, 431.

42 S^e ante, sec. 216.

43 Bobertson v. People (Colo.), 90
Pac. 79.

44 Supra, sees. 195, 383; infra, sec.
397 et seq. Cache La Poudre Co.
V. Hawley (Colo.), 95 Pac 317.

45 Squires v. Livezey, 36 Colo. 302,
85 Pac. 181.

46 Parmera' etc. Co. v. Maxwell, 4
Colo. App. 447, 36 Pac. 556.

47 Pravert v. Board etc. (Colo.), 88
Pac. 873.

48 Chapman v. Bd. of Co. Com. of
Phillips Co., 17 Colo. App. 236, 68
Pac. 134.

49 Chew V. Board of Commrs. etc.,
18 Colo. App. 162, 70 Pac. 764.' See,
also, concerning; action of irrigation
official for salary, Board etc. v.
Wheeler (Colo.), 88 Pac. 50.

S 390 8UPEBVISI0N AND ADMINISTRATION. 597

have not generally done so. They complain also that farmers and
ditch-owners will not give them the information, seeming to think
that it may in some way be nsed to their disadvantage."

"With the exception of the filing and approval of plans and the
examination of dams complained of, the law regarding reservoirs
is not generally enforced because of lack of funds. There are
hundreds of reservoirs in Colorado, and an annual inspection to
determine • how much can be safely stored would require a large
outlay. ' '

"Anyone dissatisfied with any action of the commissioner may
appeal to the division engineer and through him to the State En-
gineer, but the usual practice has been to disregard the orders
of the commissioner and then apply to the court for an injunction
restraining him from enforcing them."

"The commissioners and their deputies are given the power
to make arrests. Very little is done under this, however. The
commissioners find that in many cases the district attorneys will
not prosecute, or if they do they make little effort to convict.
Juries will seldom convict for this offense. The early reports of
the commissioners, published in the reports of the State Engineer,
are largely made up of statements of their troubles with parties
who refused to obey their orders and threatened bodily harm to
them in case they attempted to perform their duties. However,
the sentiment against the unlawful taking of water and in favoi*
of the punishment of those who do so seems to be growing."

Idaho, — "To aid in a proper distribution of the water, all ap-
propriators are required to maintain headgates and measuring

flumes in their ditches Little has been done under this law

thus far for the same reason that arrests are not made for chang-
ing headgates. It is not considered desirable to make the law ob-
noxious to the water users, but rather to create a sentiment in
favor of its enforcement, which is gradually being accomplished."

Nevada, — ^"For instance, he [the State Engineer] decides that
the rights antedating 1875 can be supplied at a particular time.
Among the holders of rights prior to that date priorities are not
recognized but the water is distributed to them in the manner in
which in the opinion of the engineer, it can be made to do the most
good.

598 SUPERVISION AND DETERMINATION OF RIGHTS. § 391

**It is probable that any holder of an early right might have
succeeded in securing his full supply regardless of the sufferings
of his neighbors had he gone into court, but with one exception
no objection was made to the distribution made by the engineer.
The party objecting attacked a water commissioner and was fined
for resisting an officer."

Utah, — ''Failure to put in structures within thirty days after
requested to do so by the engineer is a misdemeanor, but no punish-
ment is specified. The engineer has not pushed this matter. ' '

Speaking generally. — **Most of the States have provided for-this
by requiring ditch owners to put in headgates and measuring
devices on the request of the water officials. Various means of
enforcing this provision, in case the owners refuse to put in the
structures, have been tried, such as having the official put them
in and collect the cost through the county commissioners or by
suit in the court, or having the county commissioners put in the
structures and tax the cost against the property of the ditch
owner. All such systems have proved ineffective, partly because
county commissioners are apt to be in sympathy with the ditch
owners, and refuse to act, and partly because of the delay which
is unavoidable where so many different agencies are required to
act. The only provision which has been uniformly effective is
giving the water officials power to refuse to deliver water to parties
who do not comply with their orders within a reasonable time."

§ 391. Water Oommissioners and State Engineer in Oalifomia.

The office of the State Engineer was created in 1878,^ and Wm.
H. Hall became State Engineer. He started his work on an
elaborate plan, intending an irrigation survey similar to the then
recent famous Geological Survey of California by Professor J. D.
Whitney. His work, published in two volumes, disappointed the
legislature, especially when it was seen that the first volume (pub-
lished in 1888) consisted mostly of translation of foreign laws.
Mr. Hall said in his second volume (preface) that the legislature
complained that he was accomplishing nothing and threatened
to cut off his appropriation. The appropriation was in fact with-
drawn in 1889 ^^ and the office afterward was abolished.

80 Stata. 1877-78, p. 634.
61 Stats. 1889, e. 328.

§ 391 SUPEBVISION AND ADMINISTRATION. 599

Water commissioners were tried in California at an early date.'^
The act applied to only a . few * counties and was frequently
amended,^ and at the time of Lux v. Haggin,^ it was doubted
whether these acts remained in force at all.^ Under these stat-
utes it has been held that water commissioners cannot abridge
the rights of riparian owners,^ nor can the consent or authoriza-
tion of water commissioners give any rights against any prior
daimants.^*^

The office of State Engineer was again created in 1907,^ but
beyond providing for oo-operation with the United States Bedama-
tiom Service, has no connection with irrigation or the use of
waters.

62 Stats. 1854, p. 76^ Pae. 674; Charnoek v. Rose, 70 CaL

58 Lart amended 1862, p. 234. l^^i l^J^P: ^?5- . ^ .^

fu Ao n.1 9i?i? in Po* A7A ^^ Lakeeide Ditch Co. ▼. Crane, 80

6t w ual. J55, 10 trfM. 074. ^^ jgj^ 22 Pac. 76. For some other

» Cf. PoUtical Code, see. 19, con- decisions under these statutes, see Pico

tinning in force acts concerning water y. Colimas, 32 Cal. 578; Dalej' ▼. Cox,

commissioners. 43 c^i. i27.

M Lux V. Haggin, 69 Cal. 255, 10 58 Laws 1907, c. 183.

600 SUPEBVI8I0N AND DETERMINATION OP BIGHTS. §§ 392, 393

CHAPTER II.

DETERMINATION OF EXISTING PRIORITIES— BY AD-

MINISTRATIVE OFFICERS.

S 392. Wyoming method. ^

§ 393. Preparatory steps.

S 394. Procedure.

S 395. Certificates.

fi 396. Constitutionality.

§ 397. How far exclusive.

§ 392. Wyoming Method. — ^A census, determination and list-
ing is made of all existing appropriations in the States adopting
irrigation codes. The duty of doing this rests, in three States
following Wyoming (Nebraska, Nevada and Wyoming), with the
head of the administrative organization.^ In Farm Inv. Co. v.
Carpenter,^ it is said: ^'The special proceeding for adjudication
was purely statutory, and the only reason for its creation is to be
found in the inability of the ordinary procedure and processes
of the law to meet the necessities pertaining to the segregation, by
various individuals or companies of water from the same stream,
by separate, ditches or canals, and at different points along its
course, under rights by appropriation to so divert and use the
water. A similar proceeding in Colorado has been held to be
based upon or to grow out of the police power of the State."'

§ 393. Preparatory Steps. — In Nevada, the State Engineer
sends out blanks to be filled up by all existing claimants, and sworn
to„ and he collects all existing decrees of courts and other data

1 Determination of existing priori- Ditch Co. ▼. Agricultural Ditch Co.,
ties was also rested with the Board of 22 Colo. 513, 55 Am. St. Bep. 149,
Control in the 1905 statute of New 45 Pae. 444; White ▼. Farmers' High
Mexico (Stats. 1905, p. 270, sec. 29), Line Canal etc. Co., 22 Colo. 191, 43
but changed in 1907 to the method in Pac. 1028, 31 L. B. A. 828. See,
the next chapter. also, Louden etc. Canal Co. v. Handy

2 9 Wyo. 110, 87 Am. St. Bep. 918, Ditch Co., 22 Colo. 102, 110, 43 Pa«.
61 Pac. 258, 50 L. B. A. 747. 535.

8 Citing Farmers' Ind^endent

S§ 3W-396 ADMINISTBATIVE DETEKMINAT ION OF BIGHTS. 601

available, and prepares complete maps."^ A failure of claimant
to file his claim is a* crime.*^ In Wyoming, a notice of investiga-
tion is published for each stream, and all claimants then fill out
sworn statements on blank forms, and the division superintendent
then takes all evidence available, surveying the stream and examin-
ing claimants.®

■

§ 394. Procednre. — In Nebraska, the whole procedure is left
to the determination of the State board, subject to appeal to the
courts.'^ In Nevada, from the data collected as above, the State
Engineer prepares a list of priorities and issues certificates, sub-
ject to action against him in the courts.® In Wyoming, the evi-
dence gathered as above by the division engineer is placed before
the State Engineer, who prepares maps therefrom. The maps
and other data are then all placed before the Board of Control,
which adjudged the right of each claimant, subject to a rehearing
or an appeal to the courts within one year.®

§ 396. Certificates. — In Nebraska, the priorities thus deter-
mined are recorded in the office of the State board, and a cer-
tificate issued to the appropriator.^® In Nevada, the list pre-
pared by the State Engineer as above is recorded with the county
recorder, and that list is relied on thereafter.^^ Certificates are
also issued to the appropriators.^^ In Wyoming, the Board of
Control issues a certificate of priority, which is recorded with
the county clerk.**

In Nebraska all claims are considered established which date
prior to 1895, and the filing of a claim dating prior to that year
would now be regarded with much doubt by the State Engineer.

§ 396. Oonstitiitionality of These Statutes.— Where the deter-
mination is by the State Board or State Engineer, it has been
made a question whether the statutes are unconstitutional as con-
ferring judicial powers on administrative officers. In an early

4 Nev. State. 1903, p. 18. lo N«b. Comp. Stats. 1903, sees.

6 Nev. Stats. 1907, p. 30, see. 16. ^42? 6429.

6 Wyo. Bev. Stats. 861 et seq. „ 'a*-.*, lono „ 10

7 Comp. State. 1903, sec. 6427. " ^^^- ^^^^^ P" ^^'

8 State. 1903, p. 18. ^^ ^*<*-

» Rev. State. 872, 874, 883 ; Stats. 13 Rev. State. 873.

1901, p. 70.

600 8UPEBVISION AND DETERMINATION OP BIGHTS. S§ 392, 893

CHAPTER II.

DETERMINATION OF EXISTING PRIORITIES— BY AD-
MINISTRATIVE OFFICERS.

fi 392. Wyoming; method. ^

§ 393. Preparatory steps.

S 394. Procedure.

S 395. Certificates.

S 396. Constitutionality.

S 397. How far exclusive.

§ 392. Wyoming Method. — ^A census, determination and list-
ing is made of all existing appropriations in the States adopting
irrigation codes. The duty of doing this rests, in three States
following Wyoming (Nebraska, Nevada and Wyoming), with the
head of the administrative organization.^ In Farm Inv. Co. v.
Carpenter,^ it is said: '^The special proceeding for adjudication
was purely statutory, and the only reason for its creation is to be
found in the inability of the ordinary procedure and processes
of the law to meet the necessities pertaining to the segregation, by
various individuals or companies of water from the same stream,
by separate. ditches or canals, and at different points along its
course, under rights by appropriation to so divert and use the
water. A similar proceeding in Colorado has been held to be
based upon or to grow out of the police power of the State."'

§ 893. Preparatory Steps. — In Nevada, the State Engineer
sends out blanks to be filled up by aU existing claimants, and sworn
to„ and he collects all existing decrees of courts and other data

1 Determination of existing priori-
ties was also rested with tiie Board of
Control in the 1905 statute of New
Mexico (Stats. 1905, p. 270, sec 29),
but changed in 1907 to the method in
the next chapter.

2 9 Wyo. 110, 87 Am. St. Bep. 918,
61 Pac. 258, 50 L. B. A. 747.

8 Citing Farmers' Independent

Ditch Co. ▼. Agricultural Ditch Co.,
22 Colo. 513, 55 Am. St. Bep. 149,
45 Pac. 444; White y. Farmers' High
Line Canal etc Co., 22 Colo. 191, 43
Pac 1028, 31 L. B. A. 828. See,
also, Louden etc. Canal Co. y. Han^
Ditch Co., 22 Colo. 102, 110, 43 Pac
535.

§§ 3d4-396 ADMINISTRATIVE DETEKMINAT ION OF EIGHTS. 601

§ 394. Procedure. — In Nebraska, the whole procedure is left
to the determination of the State board, subject to appeal to the
courtsJ In Nevada, from the data collected as above, the State
Engineer prepares a list of priorities and issues certificates, sub-
ject to action against him in the courts.® In Wyoming, the evi-
dence gathered as above by the division engineer is placed before
the State Engineer, who prepares maps therefrom. The maps
and other data are then all placed before the Board of Control,
which adjudged the right of each claimant, subject to a rehearing
or an appeal to the courts within one year.®

§ 396. Certificates. — In Nebraska, the priorities thus deter-
mined are recorded in the oflSce of the State board, and a cer-
tificate issued to the appropriator.^® In Nevada, the list pre-
pared by the State Engineer as above is recorded with the county
recorder, and that list is relied on thereafter.^^ Certificates are
also issued to the appropriators.*^ In Wyoming, the Board of
Control issues a certificate of priority, which is recorded with
the county clerk.^^

In Nebraska all claims are considered established which date
prior to 1895, and the filing of a claim dating prior to that year
would now be regarded with much doubt by the State Engineer.

§ 396. Oonstitutionality of These Statutes.— Where the deter-
mination is by the State Board or State Engineer, it has been
made a question whether the statutes are unconstitutional as con-
ferring judicial powers on administrative bfiicers. In an early

4 Nev. Stats. 1903, p. 18. lo Neb. Comp. State. 1903, sees.

5 Nev. StatB. 1907, p. 30, sec. 16. 5427 6429.

« Wyo. Bev. Stats. 861 et seq. ii'a*^*- iftno « iq

7 Comp. Stats. 1903, sec. 6427. " ^***"' ^^^^> P* ^^'

8 Stats. 1903, p. 18. '^ ^*<'-

» Rev. Stats. 872, 874, 883 ; Stats. 13 Rev. Stats. 873.

1901, p. 70.

600 SUPEEVIBION AND DETERMINATION OF BIGHTS. SS 392, 393

CHAPTER II.

DETERMINATION OF EXISTING PRIORITIES— BY AD-
MINISTRATIVE OFFICERS.

S 392. Wyoming method. ^

S 393. Preparatory steps.

S 394. Procedure.

S 395. Certificates.

S 396. Constitutionality.

S 397. How far exclusive.

§ 892. Wyoming Method. — A census, determination and list-
ing is made of all existing appropriations in the States adopting
irrigation codes. The duty of doing this rests, in three States
following Wyoming (Nebraska, Nevada and Wyoming), with the
head of the administrative organization.^ In Farm Inv. Co. v.
Carpenter,^ it is said: ''The special proceeding for adjudication
was purely statutory, and the only reason for its creation is to be
found in the inability of the ordinary procedure and processes
of the law to meet the necessities pertaining to the segregation, by
various individuals or companies of water from the same stream,
by separate. ditches or canals, and at different points along its
course, under rights by appropriation to so divert and use the
water. A similar proceeding in Colorado has been held to be
based upon or to grow out of the police power of the State."'

§ 393. Preparatory Steps. — In Nevada, the State Engineer
sends out blanks to be filled up by all existing claimants, and sworn
to^ and he collects all existing decrees of courts and other data

1 Determination of existing priori- Ditch Co. ▼. Agricultural Ditch Co.,

ties was also rested with the Board of 22 Colo. 513, 55 Am. St. Bep. 149,

Control in the 1905 statute of New 45 Pac. 444; White v. Farmers' High

Mexico (Stats. 1905, p. 270, sec. 29), Line Canal etc Co., 22 Colo. 191, 43

but changed in 1907 to the method in Pac. 1028, 31 L. B. A. 828. See,

the next chapter. also, Louden etc. Canal Co. ▼. Han^

3 9 Wyo. 110, 87 Am. St. Bep. 918, Ditch Co., 22 Colo. 102, 110, 43 Pa«.

61 Pac. 258, 50 L. B. A. 747. 535.

8 Citing Farmers' Independent

S§ 3»4-396 ADMINISTRATIVE DETBBMINAT ION OF RIGHTS. 601

available, and prepares complete maps."^ A failure of claimant
to file his claim is a^crime.^ In Wyoming, a notice of investiga-
tion is published for each stream, and all claimants then fill out
sworn statements on blank forms, and the division superintendent
then takes all evidence available, surveying the stream and examin-
ing claimants.®

§ 384. Procednre. — In Nebraska, the whole procedure is left
to the determination of the State board, subject to appeal to the
courts.'^ In Nevada, from the data collected as above, the State
Engineer prepares a list of priorities and issues certificates, sub-
ject to action against him in the courts.® In Wyoming, the evi-
dence gathered as above by the division engineer is placed before
the State Engineer, who prepares maps therefrom. The maps
and other data are then all placed before the Board of Control,
which adjudged the right of each claimant, subject to a rehearing
or an appeal to the courts within one year.®

§ 396. Certificates. — In Nebraska, the priorities thus deter-
mined are recorded in the ofiice of the State board, and a cer-
tificate issued to the appropriator.^^ In Nevada, the list pre-
pared by the State Engineer as above is recorded with the county
recorder, and that list is relied on thereafter.^^ Certificates are
also issued to the appropriators.'* In Wyoming, the Board of
Control issues a certificate of priority, which is recorded with
the county clerk.^*

In Nebraska all claims are considered established which date
prior to 1895, and the filing of a claim dating prior to that year
would now be regarded with much doubt by the State Engineer.

§ 396. Oonstitntionality of These Statutes.— Where the deter-
mination is by the State Board or State Engineer, it has been
made a question whether the statutes are unconstitutional as con-
ferring judicial powers on administrative officers. In an early

4 Nev. State. 1903, p. 18. lo N«b. Comp. Stata. 1903, sees.

5 Nev. Stats. 1907, p. 30, Bee. 16. 5427 6429.

« Wyo. Rev. Stats. 861 et seq. n 'a*«*o ion« « tc

7 Comp. Stats. 1903, sec. 6427. " ^^^' ^^^^' P* ^^'

8 Stats. 1903, p. 18. ^^ ^*A

» Rev. Stats. 872, 874, 883 ; Stats. 13 Rev. Stats. 873.
1901, p. 70.

600 SUPERVISION AND DETEBMINATION OP EIGHTS. §§ 392, 393

CHAPTER II.

DETERMINATION OF EXISTING PRIORITIES— BY AD-
MINISTRATIVE OFFICERS.

S 392. Wyoming method. ^

§ 393. Preparatory steps.

S 394. Procedure.

S 395. Certificates.

S 396. Constitutionality.

§ 397. How far exclusive.

§ 392. Wyoming Method. — ^A census, determination and list-
ing ifi made of all existing appropriations in the States adopting
irrigation codes. The duty of doing this rests, in three States
following Wyoming (Nebraska, Nevada and Wyoming), with the
head of the administrative organization.^ In Farm Inv. Co. v.
Carpenter,^ it is said: ''The special proceeding for adjudication
was purely statutory, and the only reason for its creation is to be
found in the inability of the ordinary procedure and processes
of the law to meet the necessities pertaining to the segregation, by
various individuals or companies of water from the same stream,
by separate, ditches or canals, and at different points along its
course, under rights by appropriation to so divert and use the
water. A similar proceeding in Colorado has been held to be
based upon or to grow out of the police power of the State."'

§ 393. Preparatory Steps. — In Nevada, the State Engineer
sends out blanks to be filled up by aU existing claimants, and sworn
to,, and he collects all existing decrees of courts and other data

1 Determination of existing priori- Ditch Co. ▼. Agricultural Ditch Co.,
ties was also rested with the Board of 22 Colo. 513, 55 Am. St. Bep. 149,
Control in the 1905 statute of New 45 Pac. 444; White y. Farmers' High
Mexico (Stats. 1905, p. 270, sec. 29), Line Canal etc. Co., 22 Colo. 191, 43
but changed in 1907 to the method in Pac. 1028, 31 L. B. A. 828. See,
the next chapter. also. Louden etc. Canal Co. ▼. Han^

2 9 Wyo. 110, 87 Am. St. Bep. 918, Ditch Co., 22 Colo. 102, 110, 43 Pa«.
61 Pac. 258, 50 L. B. A. 747. 535.

8 Citing Farmers' Independent

S§ 3W-396 ADMINISTBATIVB DETBBMINAT ION OF BIGHTS. 601

available, and prepares complete maps."^ A failure of claimant
to file his claim is a* crime.^ In Wyoming, a notice of investiga-
tion is published for each stream, and all claimants then fill out
sworn statements on blank forms, and the division superintendent
then takes all evidence available, surveying the stream and examin-
ing claimants.®

§ 384. Procednre. — In Nebraska, the whole procedure is left
to the determination of the State board, subject to appeal to the
courts.*^ In Nevada, from the data collected as above, the State
Engineer prepares a list of priorities and issues certificates, sub-
ject to action against him in the courts.^ In Wyoming, the evi-
dence gathered as above by the division engineer is placed before
the State Engineer, who prepares maps therefrom. The maps
and other data are then all placed before the Board of Control,
which adjudged the right of each claimant, subject to a rehearing
or an appeal to the courts within one year.^

§ 396. Certificates. — In Nebraska, the- priorities thus deter-
mined are recorded in the ofiSce of the State board, and a cer-
tificate issued to the appropriator.^® In Nevada, the list pre-
pared by the State Engineer as above is recorded with the county
recorder, and that list is relied on thereafter." Certificates are
also issued to the appropriators.'^ In Wyoming, the Board of
Control issues a certificate of priority, which is recorded with
the county clerk.*^

In Nebraska all claims are considered established which date
prior to 1895, and the filing of a claim dating prior to that year
would now be regarded with much doubt by the State Engineer.

4 N«v. State. 1903, p. 18. lo Seh, Comp. Stats. 1903, tocs.

5 Nev. Stata. 1907, p. 30, sec. 16. 542?, 6429.

« Wyo. Bev. Stats. 861 et seq. *, 'a*«x« ' lono r. ic

7 Comp. State. 1903, sec. 6^7. '' ^^^' ^^^^ P' ^^•

8 State. 1903, p. 18. ^^ ^M*-

» Rev. State. 872, 874, 883 ; State. 13 Rev. State. 873.

1901, p. 70.

610

SUPEBVISION AND DETEBIONATIOK OF BIGHTS.

S 404

title will not lie where the special proceeding is provided.'' Sach
proceedings are distinct from injunction snits,'^ and statutes al-
lowing the joinder of all nsers do not apply to suits for damages
without equitable relief, where the parties did not act jointly.^
A statute such as last mentioned ^ will be followed by the Federal
courts.**

The Colorado decree gives no new right, but only establishes an
old one and perpetuates evidence thereof.^

§ 404. Garrier or Oonsiimer. — As elsewhere discussed, Colo-
rado and the arid States generally hold the consumer from the
ditch of a distributing company to be an appropriator. Never-
theless, the Colorado court has consistently restricted the adjudica-
tion proceedings to the company as appropriator. There is thus
no procedure of this kind in Colorado to settle the rights of oon-
sumer-appropriators inter se. Only the rights between distribu-
tor-appropriators (the carriers) are decreed in these proceedings.

The statutory proceedings for adjudication of priorities do not
apply to consumers from the same ditch inter se, but only to ap-
pri^riatois in separate ditches, and the rights of the former can-
not be determined in such a proceeding.^ The statutory proceed-
ings in Colorado apply only between ditches, and decrees there-
under do not and cannot determine the rights inter se of several
users from the same ditch.^ A decree under such proceedings
adjudicating as to rights between co-owners is void. The proper
proceeding is an action to quiet title,^ the court saying: ''The
object of these statutory •proceedings is to determine the relative
priorities of the different ditches in the water district, and that
the rights of the owners of a ditch, as between themselves, cannot
be determined therein.^ So that, even had the decree of 1889

37 Fluke V. Ford, 35 Colo. 112, 84
Pac. 469.

88 Medano etc. Co. ▼. Adams, 29
Colo. 317, 68 Pae. 431; Bneken etc.
Co. T. Farmers' etc. Co., 31 Colo. 62,
72 Pac. 49.

39 Miles ▼. Da Bey, 15 Mont. 340,
39 FiBte. 313.

40 Mont. Civ. Code, see. 1891.

41 Ames Bealty Co. v. Big Indian
Co. (Mont), 146 Fed. 166.

42 Alamosa etc. Co. v. Nelson
(Colo.), 93 Pac. 1114.

43 Putnam ▼. Curtis, 7 Colo. App.
437, 43 Pac. 1056; Hallett v. Car-
penter, 37 Colo. 30, 86 Pac. 317.

44 Evans ▼. Swan (Cok>.), 88 Pac.
149.

45 Ihid., and Combs ▼. Farmers ' etc.
Co. (Colo.), 88 Pac. 396.

46 Citing Oppenlander ▼. Left Hand
Ditch Co., 18 Colo. 142, 31 Pac 854;
Putnam v. Curtis, 7 Colo. App. 437,
43 Pac. 1056, and Long on Irriga-
tion, sec. 99.

S 404

SPECIAL PROCEEDINGS .IN COUET.

611

expressly adjudicated to the plaintiffs the right, as against their
co-owners, to the use of a certain quantity of water from either
of the ditches in controversy, it would have been void, as not within
the issues.***^ And in a recent case the court says:^ **The pro-
ceeding does not contemplate that there shall be an adjudication
of the relative rights of the owners or consumers of water under
any particular ditch, as between themselves, but only the relative
priorities of the ditches, canals or reservoirs."

But the court makes a concession in holding the decree also
res adjudicata as against the consumer-appropriator. The court
holds that by a decree against the carrier a consumer is bound so
as to prevent him afterward asserting in an independent proceed-
ing (action to quiet title) an individual priority that would take
precedence over rights given by the decree to other carriers.^ The
court concludes that this concession as to the decree directly affect-
ing, the rights of consumers is absolutely necessary in order to
avoid throwing away all previous litigation wherein only the rights
of the carrier were regarded as involved, but it leaves the matter
in some confilsion."® In a recent case the court says: *'It has
frequently been decided in this State that the decrees under the
adjudication statutes determine the priorities and the amount of
appropriations to the several ditches in the irrigation districts
in which such decrees are entered, and are not intended to desig-
nate the person or persons entitled to the use of water thus appro-
priated." As aptly stated in the' latter case: 'While no ascertain^
ment is made as to who are consumers under any particular ditch,
necessarily, the relative rights of ditch owners and cM consumers
are determined.' ^^ This rule, however, is intended to govern con-
tentions between different ditch owners taking water from the
same stream, and does not determine the rights of the consumers
in a ditch as between themselves, nor determine their relative prior-
ities, and the decree in this case determines only the priority and
the amount of appropriation to the ditch as such, and does not

4T Evans v. Swan (Colo.), 88 Pac.
149.

48 Combs V. Farmers' etc. Co.
(Colo.), 88 Pac. 398,

« Combs V. Parmers' Ditch Co.
(Colo.), 88 Pac. 396.

BO Having previously held that the
oonsumer-appropriator is not a party,*
it now holds him bound as though he
were, upon some fiction of represen-

tation. Cf. Breedlove v. Norwich etc.
Ins. Soc., 124 Cal. 164, 56 Pac. 770.

Bi Citing Farmers' Ind. Ditch Co.
V. Agricultural Ditch Co., 22 Colo.
513-524, 45 Pac. 444, 55 Am. St. Bep.
149; Oppenlander v. Left Hand
Ditch Co., 18 Colo. 142, 31 Pac. 854 ;
Combs V. Farmers' High Line Canal
ic Bes. Co. (Colo.), 88 Pac. 396.

02 Italics ours.

612 SUPERVISION AND DETERMINATION OF RIGHTS. § 405

attempt to determine the rights of the consumfers, excepting in-
cidentally as against other ditch owners; neither does it attempt
to attach the priorities to any particular lands. "*^

Probably the rule confining the adjudication proceedings to the
rights of the carrier-appropriator points out a weakness in the rule
that the consumer is also an appropriator. It is seen that he is
only so ''sub modo," and not for all purposes, so that confusion
has undoubtedly resulted. It is said inferentially in Combs v.
Farmers etc. Co., that it is due to the failure of the early cases
to appreciate the full purport of the rule they had announced in
declaring the consumer to be an appropriator.

§ 406. Scope of Proceedings. — To enforce decreed rights, the
irrigation ofScials of the State, of the water division, and of the
water district, may be joined with the other appropriators as de-
fendants,^ and all persons whose rights might be affected are en-
titled to be made parties.*"*

Priorities cannot be awarded to ditches for irrigation of lands
out of the State,^ nor to rights in more than a single water dis-
trict in each proceeding.***^ As between different water districts,
the proceedings adjudicate for each district separately, and in dis-
tributing the water in enforcement of the decrees between different
districts, the decrees in each district are taken together as a single
decree for that district. *'This court has held that the decrees
of the several districts taking water from the same general source
are prima facie evidence as between such districts. We have also
decided that it is the duty of the superintendent of irrigation for
a water division to distribute the waters of the streams of his divi-
sion in accordance with the adjudication decrees of the water dis-
tricts included therein, so that, in effect, the various decrees in a
water division are to be treated as one, and water distributed ac-
cordingly.""

58 O'Neil V. Fort Lyon etc. Co. 57 Sterling Irr. Co. v. Downer, 19

(OoloO, 90 Plac. 849. , . ,, , Colo. 595, 36 Pac. 787. But see

. /*^®!^,^*^«-,o%I-A^^o?"iS'*^ louden Irr. Co. v. Handy Ditch Co.,

^^^^Arl^ a'A '^^ ^^ ^' 22 Colo. 102, 43 Pac. 535; Lower

149, 45 Pac. 444. Cf, Botdware v. • „+u„„, p^ * ti; •^„ p« rrlir. \ a«

Parke, 4 Idaho, 692, 43 Pac. 680. i^!*^;^,^^' ^' ®'^^^ ^^- ^^^^^'^^ ^^

55 Nichols V. Mcintosh, 19 Colo. ^^' '*^^-

22 34 Pac. 278. " Fort Lyon etc. Co. v. Arkansas

66 Lamson v. Vailes, 27 Colo. 201, etc. Co. (Colo.), 90 Pac. 1023.
61 Pac. 231.

S 405 SPECIAL PROCEEDINGS IN COURT. 613

An appropriator in a different district from that in which a
decree is rendered must, it appears, intervene or else be bound by
the decree as much as those within the district where it is rendered.
He is bound, probably, not by the decree (not having been served
with process), but by the four years statute of limitation referred
to in the following passage: **The State had the power to provide
reasonable means for determining rights to the use of water, and
to require all persons claiming such riglits to present them in a
prescribed manner, within a prescribed period, and to provide
that all such claims not thus presented should be barred. Par-
ties to adjudication proceedings in one district are bound to take
notice of the rights adjudicated in other districts whereby rights
are fixed in the same stream, although they are not adjudicated
ill the same action and in a common forum. They are bound to
know that water from such a stream will be distributed according
to the several decrees fixing rights therein, in the same manner
with respect to priority and volume as though such several decrees
were, in fact, one, because the law provides that the water shall
be so distributed. For the statutory period the priorities of such
districts are, as between the respective appropriators therein, but
prima facie evidence of the rights of such appropriators, but after
the lapse of four years from the date a decree is rendered fixing
such priorities, unless suit is theretofore brought, they become con-
clusive. . , . ."^

In the same proceeding to determine priority, the right to change
tlie point of diversion, which, in Colorado, requires suit in court,
may be determined.^ *'The object of the proceeding ui;ider the
adjudication statute is to determine the amount and date of the
appropriations of water to which the ditch is entitled, and the
title to the ditch or the rights of any of the consumers of water
from the ditch are entirely foreign to the issue, but after the
appropriations have been determined and settled, and the owner
of any portion thereof desires to change the point of appropria-
tion as he is entitled to, the question as to the amount of his in-
terest is material, and must be determined at the time or before
the change is permitted. There is no good reason why this may
not be done in one proceeding. It would avail the other parties
interested nothing to compel the petitioner to proceed first to have

59 Fort Lvon etc. Co. v. Arkansa." elc. Co. (Colo.), 90 Pac. 1023.
«o See supra, sec. 182.

614 SUPEByiSION AND DETERMINATION OF RIGHTS. § 406

his speciiSc rights determined, and then in a separate proceeding to
secure the right to change the point of diversion. It is contrary
to the principles of equity and good sense to compel parties to
engage in two suits at law or equity when the whole matter can be
determined in one. Equity as well as good conscience abhors a
multiplicity of actions." •*

A decree settling- rights does not prevent thereafter the drain-
age of mine water into a decreed stream and taking it out again
at some other point for irrigation. Bights in such new water are
not aflfected by the decree.®^.

§ 406. Form of Decree. — There has been a tendency in Colo-
rado to measure the amount awarded to the appropriator by the
capacity of his ditch and not by th£, amount used. This is an
application of the original theory of appropriation that beneficial
use was not matter precedent to the appropriation, but matter sub-
sequent, operating by way of abandonment. Since only rights of
distributor-appropriators (carriers or companies) are decreed, the
amount actually used probably varies according to the number
and varying necessities of its customers, and to limit the company's
right to the amount used at the time the decree is given would
prevent the company developing the region it supplies so as to
later, by increasing settlement, increase the use to the full capacity
of its plant. Consequently the decree is usually in the form of
decreeing to the capacity of the ditch, but it has more recently been
held that the decree must be expressly based on beneficial use, or
else that will be implied and read into the decree.** The Idaho
statute ®* requires the amount and time for future application and
use of the water, in case a claim is made for future needs, to be
fixed by the decree, and this has been enforced in the Federal
court.^ Decrees are required to be numbered, but lack of number-
ing does not open the decree to collateral attack.* Costs are usu-
ally placed upon the parties. ** Every person who appropriates
water under the laws of this State (Idaho) must remember that
it ia sure to cost something for a final adjudication of such rights,

61 Hallett V. Carpenter, 37 Colo. etc. Co. v. Adams, 29 Colo. 317, 68
30, 86 Pac. 317. Pac- 431.

a<M>^^i7 ^ ^^' «^ Trade etc. Co. v. Praser, 148

^^ P**^- ^^- Fed. 687.

63 X. Y. etc. Co. V. Buffalo etc. Co., qs Lake Fork etc. Co. v. Haley, 28

25 Colo. 529, 55 Pac. 720; Medano Colo. 513, 67 Pac. 158.

§ 407 SPECIAL PROCEEDINGS IN COURT. 615

and that they must pay the costs, "•'^ in which case the State
Engineer's services covering 200,000 acres amounted to $11,000.
The trial judge may order surveys made, the cost thereof being
apportioned among all the parties, and a cost bill need not be filed.®*^*
On appeal, the provision of the statutes for filing transcripts and
proof of service are mandatory.®

The Idaho statute requires the decree to declare the right ap-
purtenant to specific land, but in certain cases this is held not to
apply.®*

§ 407. Effect of Decree. — The decrees are open to direct at-
tack like other decrees, for the power of the district court over
its decrees in these matters is co-extensive with that which any
court possesses over its judgments or decrees.® By statute a re-
view must be requested within two years in Colorado.*^® *' Where
a claimant of a priority to the use of water for irrigation appears
in a statutory proceeding for the adjudication of such priorities,
and files a statement of his claim, the decree thereunder is res
judicata as to him and his rights, though he neglects to offer proofs ;
and unless, within the statutory period of two years, he applies for
a review, he may not thereafter, in any proceeding or action, be
heard to object to the same.'**^^ But the above does not apply to
one who was absent from the State and not served with processJ^
The two years limitation above, apparently, does not apply to de-
crees given on default or failure to file claim; but in such cases
the limitation is four years.*^* Within the four years it has been
held that kn independent suit may be brought.*^* But later de-
cisions hold that even such decrees cannot within the four years
be reopened as to any matter within the scope of the decree, or

67 Boiae etc. Co. v. Stewart, 10 70 M. A. S. 2421, 2425.

Idaho, 38, 77 Pac. 31. 71 Crippen v. X. Y. Z. Ditch Co.,

67a Farmers' Co. v. Riverside Irr. 32 Colo. 447, 76 Pac. 797, construing

Dist. (Idaho), 94 Fac. 761. M. A. S., sees. 2421, 2425.

68 Needle Boek etc. Co. y. Craw- 72 Nichols v. Mcintosh, 19 Colo,
ford etc. Co., 32 Colo. 209, 75 Pac. 22, 34 Pac. 278. See, also. In re
424. See Magill v. Hyatt, 20 Colo. Priorities Dist. No. 12, 33 Colo. 270,
App. 524, 80 Pac. 472, concerning^ 80 Pac. 891.

the form of the decree. 78 M. A. S. 2434.

68a Farmers' C6. v. Bivendde Irr. 74 Greer v. Heiser, 16 Colo. 306,

Dist. (Idaho), 94- Pac. 761. 26 Pac. 770; Nichols t. Mcintosh, 19

68 Peterson v. Durkee, 15 Colo. Colo. 22, 34 Pac. 278; Putnam v.

App. 258, 62 Pac. 370. Curtis, 7 Colo. App. 437, 43 Pac. 1056.

616

SrPEBVISION AND DETERMINATION OF BIGHTS. § 407

which might have been determined in the original suitJ' Nor
can they be reopened or an independent suit be brought, after
the four years have expired.''*

The decrees are not open to collateral attack." They are con-
clusive upon the parties.^ It has been frequently determined
by the Colorado court that except as specially provided by stat-
utes, or in case of fraud, decrees rendered in statutory proceedings
under the irrigation act are res adjvdicata and conclusive upon
the parties thereto.'* This was applied in one ease,*^ where the
decree was held binding, though not numbered. The decree is
re$ adjudicaia upon the question of abandonment prior to the de-
cree.*^ The district courts of Colorado act as courts of general
jurisdiction in these matters, whose jurisdictional requirements
will be presumed on collateral attack on their decrees.^ The
reason for holding this is given in the' latter case: ''Water rights
are of the first importance to the farmers of this State. Without
them farms are of but little value. Belying upon the title to water
rights evidenced by adjudication proceedings, farmers have
brought their lands under cultivation and expended large sums of
money, as well as labor, in making improvements. To now de-
prive them of these rights would despoil them of the benefits of

75 Handy etc. Ck). v. Southside etc.
Co., 26 Colo. 333, 58 Pac. 30; Upper
Platte etc. Co. v. Fort Morgan etc.
Co., 27 Colo. 214, 60 Pac. 484; Boulder
etc. Co. V. Lfower etc. Co., 22 Colo.
115, 43 Pac. 540; Montrose etc. Co.
V. Loutsenhizer, 23 Colo. 233, 48 Pac.
522.

76 Millfl' Ann. Stats., sees. 2434,
2435, providing that, after four years
from the rendering of a final decree
in any water district adjudicating
rights to waters for irrigation there-
in, all persons shall be forever barred
from setting up any claim to priority
of rights to water for irrigation in
such dOlstrict adverse or contrary to the
effect of such decree, bars an inde-
pendent action to determine the rela-
tive rights of canals drawing water
from the same stream after the lapse
of four years from the' respective ad-
judication decrees, where their re-
spective priorities have been regu-
larly determined in different statutory
proceedings in different water dis-

tricts, though only one of the canal
companies was a party to the proceed-
ing, and only the other company to
the other proceeding. Fort Lyon etc.
Co. V. Arkansas etc. Co. (Colo.), 90
Pac. 1023.

77 Cases just cited.

78 Farmers' Union Ditch Co. v. Rio
Grande Canal Co., 37 Colo. 512, 86
Pac. 1042.

79 Kerr v. Bums (Colo.), 93 Pac.
1121 ; Farmers' etc. Co. v. Bio Grande
etc. Co., 37 Colo. 512, 86 Pac 1042,
citing New Mercer D. Co. v. Arm- •
strong, 21 Colo. 357, 40 Pae. 989;
Louden Canal Co. v. Handy D. Co., 22
Colo. 102, 43 Pac.- 535, 540; Montrose
Canal Co. v. Loutsenhizer Co., 23
Colo. 233, 48 Pac. 532.

80 Tjake Fork etc. Co. v. Haley, 28
Colo. 513, 67 Pac. 158.

81 O'Brien v. King (Colo.), 92 Pac.
945.

82 Farmers' etc. Co. v. Rio Grande
etc. Co., 37 Colo. 512, 86 Pac. 1042.

§ 407 SPECIAL PROCEEDINGS IN COURT. 617

•

their expenditures and years of labor. To impose upon them, in
case of a collateral attack, the burden of showing affirmatively that
all steps kad been taken to authorize the court to render the decree
relied upon would in many instances work this result. While it
is true that under the doctrine of some jurisdictions the district
courts of this State, in adjudicating water rights under the stat-
ute, would be held courts of limited jurisdiction, we prefer to
adopt the rule, supported by abundant authority, that our dis-
trict courts in such proceedings are courts of general jurisdiction,
and thus protect the claimants of adjudicated water rights from
the possibility of losing the fruits of their toil by the neglect or
inadvertence of persons for which they are not responsible."®^
While rfis adjudicaia upon fill questions of abandonment or quan-
tity prior to the decree, it does not affect abandonment subsequent
thereto, since the decreed right may be lost in whole or in part
by subsequent non-use,^ and evidence of non-use prior to the de-
cree will be received as evidence of such subsequent abandonment.®^
Matters not adjudicated by the decree, or arising subsequent
thereto, or demanding protection of decreed rights, may, however,
be sought in an independent proceeding.®* The ordinary equity
jurisdiction remains to enjoin in subsequent independent suits
acts violative of an adjudication decree.®^ A recent case®® says:
'*The decree when first entered is not final, because we find pro-
visions for reargument and review, and for appeals.®* Notwith-
standing these provisions, however, the decrees are res adjudicaia
between those who were parties to, or participated in, the pro-
ceedings in which such decrees were rendered, and can only be
attacked, reviewed or modified in the manner provided by law.®^
Section 2434 does not permit one who was a party to an adjudica-
tion proceeding to maintain an independent action against an-
other party to such a proceeding for the purpose of fixing rights
different from those determined in the adjudication proceedings.

83 Parmera' etc. Co. v. Rio Grande 87 Kerr v. Burns (Colo.), 93 Pac.

etc. Co., 37 Colo. 512, 86 Pac. 1042. 1121.

M Alamosa etc. Co. v. Nelson 88 Fort Lyon etc. Co. v. Arkansas

(Colo.), 93 Pac. 1121. etc. Co. (Colo.), 90 Pac. 1023.

85 Ihid, 89 Citing 1 Mills' Ann. Stats., sees.

86 Suckers etc. Co. v. Farmers' etc. 2425, 2427.

Co., 31 Colo. 62, 72 Pac. 49. Cf. w Citing Louden Canal Co. v.

Montrose etc. Co. v. Loutsenhizer etc. Handy Ditch Co., 22 Colo. 102, 43
Cb., 23 Colo. 233, 48 Pac. 532. Pac. 535.

618 SUPERVISION AND DETERMINATION OP RIGHTS. § 407

because such proceedings are, as to such parties, res judicata." ^^
A decree establishing priorities cannot be attacked in a later pro-
ceeding for change of point of diversion,^ The presumption is
that the decreed rights continue in existence until a court of com-
petent jurisdiction in an appropriate action has otherwise deter-
mined.*®

Rights not complete at the time the decree is rendered, the work
being still in progress, are left open by the decree. The decree
is not res adjudicata as to them.^^

The decree is in rem, and cannot be enforced by contempt pro-
ceedings against one who prevents the water commissioner from
enforcing it.**

We have set forth this matter at this length because this state ^
is the originator of this plan of having all rights within the State
put through a process of adjudication in court, and to show the
large amount of purely technical litigation that has resulted. It
is said®® that ** Prior to the passage of the Irrigation Acts of 1879
and 1881 this State was sparsely inhabited — ^not nearly all of
our agricultural lands had been brought under cultivation by
means of irrigation — and there had been very few controversies
respecting priorities of right to the use of water for irrigation
purposes The effect of these Irrigation Acts was not fore-
seen by the great mass of the people whose most valuable rights
were to be affected by them. The agricultural classes are generally
the slowest people to take notice of legislative acts affecting their
interests The result of these Irrigation Acts was to pre-
cipitate legal proceedings upon large numbers of people, and thus
make it necessary for them to assert and defend their rights as
against their neighbors, when, in fact, their rights had never been
assailed or questioned." It is further therein said (the writer of
this book has no personal information upon the point) that excess

01 Citing Montrose Canal Co. v. ^ Lower Latham etc. Co. v. Bijou

Louteenhizer D. Co., 23 Colo. 233, 48 etc Co. (Colo.), 93 Pac. 483.

?.^* T?^^' ?2°^^, ^ooi^^o « ^^^ ^ Conley v. Dyer (Colo.), 95 Pac.
Side D. Co., 26 Colo. 333, 58 Pac. 30; 3Q4 ' ^ ^ "

Cons.' Home Supply D. & B. Co. v. «! ^ , ^ , ,^ , v ^«

New Loveland k Greeley Irr. k L. Co., ^ •* Bobertson v. People (Colo.), 90

27 Colo. 521, 62 Pac. 364; Crippen v. Pa«- 79.

X. Y. Irr. Co., 32 Colo. 447, 76 Pac. 95 Colorado.

^^t; w ^ *u * r. T> ^ BuUetin, 58 U. S. Dept. Agric.

»2 Wadsworth etc. Co. v. Brown ^^ q^„^ ,> oq r »

(Colo.), 88 Pac. 1060. ^*- ^***'' ^' ^^'

§ 408 SPECIAL PROCEEDINGS IN COUET. * 619

decrees were frequent, have tended to speculation in water, have
resulted in fraud by collusive suits. This is probably much ex-
aggerated, but as other States have recently passed statutes fol-
lowing the Colorado idea, the diflSculties inherent in throwing water
rights into wholesale litigation should be borne in mind, and
avoided, if possible. A Colorado author®^ complains that the de-
cree may, in effect, be an authorization of waste in case the crops
are changed to one needing less than the decreed amount of water,
or where, because of continued soaking of the land, the seepage
and evaporation take up less of the water. The decree is intended
to fix a definite constant quantity for the use of each appropriator,
but beneficial use cannot be a constant factor in the nature of
things. In a recent case the Colorado court says:** ''*It was a
new field, and, in the light of experience, we can, perhaps, point
out many imperfections in these statutes, but they have been up-
held by the courts and acquiesced in by the people for more than a ,
quarter of a century."
Reference should also be made to the preceding chapters.**

§ 408. Comments of Department of Agricnlture. — Concerning
the practical operation of these statutes, dealt with in this and the
preceding chapter, some quotations may be given from Bulletin
168 of the United States Department of Agriculture.*^

Colorado. — "Most of the rights in Colorado have been defined
under this special form of procedure, but there is continuously aris-
ing litigation to settle points which had not arisen at the time the

decrees were rendered Many of the decrees are indefinite,

making it necessary for the commissioners to interpret them. Most
of them have awarded to some of the ditches more water than has
ever been diverted by them, while in theory the owners of a ditch
are entitled to no more water than they have put to beneficial use."

Utah, — ^''One of the greatest drawbacks is the time consumed.
If the surveys of a single stream are to occupy the time of the en-
gineer and his assistants six years, it. will take a great many years
to adjudicate the rights of the streams of the State. This new law

07 Long on Irrigation. lOO Office of Experiment Stations,

M Fort Lyon etc. Co. v. Arkansas "The State Engineer and His Rela-

etc. Co. (Colo.), 90 Pac. 1023. tion to Irrigation" (1906).

w And to Part I, c. VIII, and

supra, sees. 182, 183.

620 SUPERVISION AND DETERMINATION OF RIGHTS. § 408

■

did not repeal the old law, under which in any water-right suit
all parties claiming rights to the same source may be made parties
to the action. It is quite likely that in the years that must elapse
before the rights throughout the State are defined under the new
law many will be defined in the old way."

Wyoming. — **The superintendents have never been able to keep
up with this work, and there are a great many ditches which have
been completed and whose owners have notified the State Engineer
of their readiness to submit proof of this fact, for which proof

has not been taken Most of the smaller streams of the State

have been adjudicated, and some of the larger ones, but the large
streams generally have not yet been taken up."

Oenerally. — **It appears, then, from a study of the operation of
the laws for defining water rights in the various States that so
far the only effective means of securing a complete list is to have
the work done by an administrative board or ofScial, subject to re-
view by the courts."

PART V.

DISTRIBUTION OF WATER.

CHAPTER I.

RIGHTS OP CONSUMERS PROM DISTRIBUTORS.

A. DISTRIBUTORS OP WATER.

S 409. What corporations are in public service.
S 410. Mutual companies.

B. DUTIES AS QUASI PUBLIC SERVANTS.

§ 411. The common law.

S 412. Constitutional declaration.

C. PUBLIC DUTIES.

f 413. Must serve all the pubUc (compulsory service).

S 414. Without unreasonable conditions.

§ 415. With adequate facilities.

§ 416. Without discrimination.

§ 417. At reasonable rates.

S 4lB. Same — Bate regulation by statute. *

A. DISTEIBUTOBS OF WATEE.

§ 409. What Corporations are in Public Service.— The use to
which the water is appropriated is not any the less a public use
because of the fact that all of the beneficiaries have become stock-
holders of the company. ^ The corporation is to be regarded, so far
as the water in question is concerned, as a mere agency of the par-
ties entitled to the use of the water, whether stockholders or others,
for the purpose of distribution.^^ Where several of those entitled
to the waters of a certain creek, as a public use, form a corpora-
tion for the purpose of distributing the water, and all but one
of those entitled thereto subsequently became stockholders, the use

1 Shorb V. Beaudry, 56 Ckl. 446.

(621)

622

DISTRIBUTION OF WATER.

S 410

is not thereby rendered any the less a public one.^ The fact that
the consumers are all stockholders in the distributing company
does not prevent the use being a public use.^ Shorb v. Beaudry *
is an example of a water corporation not in public service, and
McPadden v. Los Angeles*^ is another example of a mutual water
company not in public service.

Where all owners of land within the service capacity of the
canal will possess the right to use the water which may be diverted
into such canal, the use is clearly public,® and the company is there-
fore a public agency.*^

The question will be found further considered and involved in
the following sections. Reference is also made to the chapters on
Eminent Domain.

§ 410. Mutual Companies. — Some corporations are so organ-
ized that shares of stock represent rights to specific quantities of
water. In such corporations the certificate of stock represents the
water right, and a transfer or sale of the certificate will transfer
the water right, or the certificate may, where the water right is
appurtenant to land, pass as an appurtenance on sale of the land.^
A recent statute in California provides that the by-laws may re-
strict the use of the water to the lands of stockholders, so that the
stock and right to use the water shall only be transferred with
said lands, provided the by-law is recorded in the office of the
county recorder.®

In mutual companies, a transfer of stock transfers an interest
in the ditch and a priority to the use of water to the amount of
the stock so transferred, if the transfer is made on the books of- the

2 Hildreth v. Montecito Co. (Cal.),
70 Pac. 672.

3 Lindsay Irr. Co. v. Mehrtens, 97
Cal. 676, 32 Pac. 802.

4 56 Cal. 450.

5 74 Cal. 571, 16 Pac. 397.

« Fallbro^k Irr. Dist. v. Bradley,
164 XJ. S. 163, 41 L. ed. 390, 17 Sup.
Ct. Bep. 56.

7 Gutierree v. Albuquerque etc. Co.,
188 U. S. 545, 47 L. ed. 588, 23 Sup.
Ct. Bep. 338.

s Eaton v. Larimer etc. Co., 35
Colo. 16, 83 Pac. 627; Biggs v. Utah
etc. Co., 7 Ari2. 331, 64 Pac. 494;

Oppenlander y. Left Hand IMteh Co.,
18 Colo. 142, 31 Pac. 854; Estate of
Thomas, 147 Cal. 236, 81 Pae. 539.
See Tnie v. Bocky Ford etc. Co., 36
Colo. 43, 85 Pac 842. But see Wells
V. Price, 6 Idaho, 490, 56 Pac. 266;
Struby etc. Co. v. Davis, 18 Colo. 93,
36 Am. St. Bep. 266, 31 Pac 495;
Snyder v. Murdock, 20 Utah, 419, 59
Pac. 91; Combs v. Agricultural Ditch
Co., 17 Colo. 146, 31 Am. St. Bep.
275, 28 Pac 966.

9 Civ. Code, 324, as amended 1907,
p. 854.

§ 411 RIGHTS OF CONSUMERS FROM DISTRIBUTORS. 623

company, but not otherwise.^*^ A sale of water stock separate
from the land, and for use on other land, may be rnade^^^ where
the change of use does not injure other appropriators.^^ This is
but a following out with regard to mutual companies of the Colo-
rado rule below set forth, regarding consumers in general ; namely,
that the consumer has all the rights of an appropriator from the
natural stream. The stockholder-consumer in a mutual ditch com-
pany haa.in Colorado been held to be an appropriator similar to
the rule regarding consumers from other companies.^^

B. DUTIES AS QUASI PUBLIC SERVANTS.

§ 411. The Oonunon Law. — ^At common law, the business of
the company is considered to be affected with a public interest,
thereby subjecting the business, the conduct of the company toward
consumers, to public regulation and control, for the public good.
The regulation and control arise out of the police power of the
State. Under the police power the State governs the distributor
of this property devoted to public use, in its conduct toward con-
sumers, for the public good, and prescribes that the distributor
must serve all the public to the extent of its capacity, that it must
provide adequate facilities, that it must not discriminate, that
its rates must be reasonable (as fixed by a designated public body,
if the statutes so provide and such body has acted), and similar
conditions. In saying that property (the water rights and canals)
is devoted to public use, it is comprehended that the business of
distributing the water is affected with a public interest such as
to subject it to regulation and control under the police power of
the State. The control rests on the police power, and does not
involve any consideration of the company's title to the property
it uses in the business. It may hold those titles in fee simple, by

10 Cache La Poudre Irr. Co. v. 12 Cache La Poudre etc. Co. v.

Larimer & Weld Irr. Co., 25 Colo. t«,;«,^,«*- n^ or n^i« iaa ti a«.

144, 71 Am. St. Rep. 123, 53 Pac. ^''''™^' «*«• ^^'^ ^5 Colo. 144, 71 Am.

318; Supply etc. Co. v. Elliott, 10 St. Rep. 123, 53 Pac. 318; Grand Val-

Pac 691 ; Spurgeon v. Santa Ana etc. ley etc. Co. y. Lesher, 28 Colo. 273, 65

Co., 120 Cal. 71, 52 Pac. 140, 39 L. Pac. 44; Talcott v. Mastin, 20 Colo.

R. A. 701; George v. Robinson, 23 . .«« 70 Pop 073

Utah, 79, 63 Pac. 819. ^PP' ^\ ^^ ^f ' ^^^' ^

u Oligarchy etc. Co. v. Farm Inv. *' Wadaworth etc. Co. y. Brown

Co. (Colo.), 88 Pac. 443. (Colo.), 88 Pac. 1060.

624 DIOTBIBUTION OF WATER. § 411

lease, or by mere license, or subject to mortgage, easements, or liens ;
however it be is immaterial *to the common law, which looks to the
business it conducts, irrespective of its title to property. The
leading case upon the common-law theory of public service com-
panies is Munn v. Illinois,** saying: **From this source come the
police powers, which, as was said by Chief Justice Taney in the
License Cases,**^ 'are nothing more or less than the powers of gov-
ernment inherent in every sovereignty — ^that is to say, the power
of governing men and things.' Under these powers the govern-
ment regulates the conduct of its citizens, one toward another, and
the manner in which each shall use his own property when such'
regulation becomes necessary for the public ^ood. In their ex-
ercise it has been customary in England from time immemorial
and in this country from its first colonization, to regulate ferries,
common carriers, hackmen, bakers, millers, wharfingers, innkeepers,
etc. ; and in so doing to fix a maximum of charge to be made for
services rendered, accommodations furnished and the articles sold."
(Adding that to-day the States pass statutes upon these subjects
under the police power.)*®

The following expresses these principles of common law as ap-
plied to irrigation companies : * * The carrier voluntarily engages in
the enterprise. It has in most instances, from the nature of things,
a monopoly of the business along the line of its canal. Its voca-
tion, together with the use of its property, are closely allied to
the public interest. Its conduct in connection therewith materi-
ally affects the community at large. It is, I think, charged with
wh^t the decisions term *a public duty or trust.' In the absence of
legislation on the subject, it would, for these reasons, be held, at
common law, to have submitted itself to a reasonable judicial con-
trol, invoked and exercised for the common good, in the matter
of regulations and charges; and an attempt to use its monopoly
for the purpose of coercing compliance with unreasonable and ex-
tortionate demands would lay the foundation for judicial inter-
ference.*'^ .... The carrier is at least a gwosi-public servant
or agent. It is not the attitude of a private individual contracting

14 94 U. S. 113, 24 L. ed. 77. 487, citing Munn v. Hlmois, 94 U.

15 5 How. 583, 12 L. ed. 279. S. 113, 24 L. ed. 77, and cases cited;

16 See, also, '30 Am. & Eng. Ency. Price v. Land Ck)., 56 Cal. 431;
of Law, 476. Chicago etc. By. Co. v. People, 56

17 Wheeler v. Northern Irr. Co., 10 HI. 365, 8 Am. Bep, 690; Vincent v.
Colo. 582, 3 Am. St. Bep. 603, 17 Pac. Chicago By. Co., 49 HI. 33.

I 411 RIGHTS OF CONSUMERS FROM DISTRIBUTORS. 625

for the sale or use of his private property. It exists largely for the
benefit of others; being engaged in the business of transporting,
for hire, water owned by the public, to the people owning the right
to its use." *®

The matter differs from dedication of highways and parks. The
technical dedication in those cases operates upon the title to the
property, passing an easement to the public,^* and sometimes
passes the fee in the soil,^ a kind of conveyance carving out an
easement from the title and passing it to the public to the extent
of the easement. But a railroad company does not, by merely
engaging in the business, pass a public easement in its right of way,
nor transfer to the public any share in its property rights in its
rolling stock, stations or other property by any technical dedica-
tion such as the public has in a dedicated street or park. The set-
ting out of a street is the familiar case of dedication which grants
to the public an easement of right of way. No such dedication
can be imputed, to the owner of a wharf, for example. The sup-
posed grant to the public is therefore a pure fiction of the law,
which, far from aiding, merely confuses the understanding of the
problem.2^ There is no technical dedication arising from the
business of an irrigation company, which, aside from conti^act,
would pass a proprietary interest in the property to the public,
such as does a technical dedication of a street. The* whole matter
is the simple one that so far as the common law is concerned, title
is in the company unaffected, as in any other owner of property,
but that its business, is subject to public regulation because of the
public interest in its proper conduct. The company is limited
against transactions that affect its business against the interests of
the public, or prevent good conduct toward the public, or the per-
formance of the public duties of serving all the public to the extent
of its capacity, and with adequate facilities and at reasonable rates
(as fixed by some public body if such action has been taken), and
without discrimination, and similar restrictions on conduct. This
is the view of the common law.

18 Wheeler v. Northern Irr. Co., 10 i» 19 Am. ft Enir. Ency. of Law,

Colo. 582, 3 Am. St. Rep. 603, 17 Pac. 22.

487. Accord 22 Am. & Eng. Ency. oa j^iA i±

of Law, 930; 30 Ibid. 416. See " „ *^" ' . ^ , ^

Freund^B Police Power, sec. 372, etc. ' " Preund's PoUce Power, sec. 372.

VVaier lUght»— 40

626

DISTRIBUTION OF WATER.

9 412

Distributors of water (canal companies, irrigation companies,
etc.) are held to be engaged in public service, and guasi-public ser-
vants.^

§ 412. Constitutional Declaration. — It is usual to find con-
stitutional provisions to the effect that the distribution of water
for irrigation or other purposes is a public use, somewhat similar,
to that in the California Constitution. The first clause of article
XIY, section 1, of the California Constitution is as follows:
'*The use of all water now appropriated, or that may hereafter be
appropriated, for sale, rental, or distribution, is hereby declared
to be a public use, and subject to the regulation and control of
the State, in the manner to be prescribed by law."^ The rest
of the section applies exclusively to cases where water is supplied
to incorporated cities or towns.

That such a declaration is merely declaratory of the common
law is well settled in California. Article XIV of the California

22 Arizona, — SlpBser ▼. Salt River
Co., 7 Ariz. 376, 65 Pac. 332; Gould
V. Maricopa Canal Co., 8 Ariz. 429,
76 Pac. 598 ; Hayois v. Bait River Co.,
8 Ariz. 285, 71 Pac. 944.

California. — Crow v. Irr. Co., 130
Cal. 309, 62 Pac. 562; People v.
Stephens, 62 Cal. 209; Hildreth v.
Montecito Water Co. (Cal.), 70 Pac.
672; Merrill v. Southside Irr. Co., 112
Cal. 426, 44 Pac. 720; Price v. River-
side Land k Irr. Co., 56 Cal. 431, 433;
Cozzens v. N. Fork Ditch Co., 2 Gal.
App. 404, 84 Pac. 342; Lanning v.
Osborne (Oftl.), 76 Fed. 319; Atlan-
tic Trust Co. V. Woodbridge Canal &
Irr. Co. (Cal.), 79 Fed. 39; San Joa-
quin & K. R. Oinal & Irr. Co. v. Stan-
islaus County (Cal.), 90 Fed. 516;
McCrary v. Beaudry, 67 Cal. 120, 7
Pac. 264; Spring Valley W. W. v.
Schottler, 110 U. 8. 347, 28 L. ed.
173,4 Sup. Ct. Rep. 48.

Colorado, — Wheeler v. Northern etc.
Co., 10 Colo. 582, 3 Am. St. Rep. 603,
17 Pac. 487; Wyatt v. Larimer &
Weld Irr. Co., 18 Colo. 298, 308, 36
Am. St. Rep. 280, 33 Pac. 144, re-
versing 1 Colo. App. 480, 29 Pac.
906; Junction Irr. D. Co. v. City of
Durango, 21 Colo. 194, 196, 40 Pac.
356; i^rmers' Independent D. Co. v.

Agricultural D. Co., 22 Colo. 513, '521,
55 Am. St. Rep. 149, 45 Pac. 444.

Idaho. — Wilterding v. Green, 4
Idaho, 773, 45 Pac. 134; Hard v.
Boise etc. Co., 9 Idaho, 589, 76 Pac.
331, 65 L. R. A. 407; Bardsley v.
Boise etc. Co., 8 Idaho, 155, 67 Pac.
428; Boise etc. Co. v. Boise City
(Idaho), 123 Fed. 232, 59 C. C. A.
236.

£ran«a«.— Western Irr. Co. v. Chap-
man, 8 Kan. App. 778, 59 Pac. 1098.

Montana. — State v. Minnesota etc
Co., 20 Mont. 198, 50 Pac. 420.

Nebraska. — ^Farmers' Irr. Dist. v.
Frank, 72 Neb. 136, 100 N. W. 286;
Sammons v. Kearney Power & Irr.
Co., 110 N. W. 308.

New Mexico. — Albuquerque Land &
Irr. Co. V. Gutierrez, 10 N. Mex. 177,
61 Pac. 357; Candelaria v. Yallejos
(N. Mex.), 81 Pac. 589.

Teir(M.--Colorado Canal Co. v. Mc-
Farland & Southwell (Tex. Civ. App.),
94 S. W. 400.

Washington. — ^Prescott Irr. Co. v.
Flathers, 20 Wash. 454, 55 Pac. 635.

28 See Wash. Const., art. XXI, sec.
1; Idaho, art. XY, sec. 12; Montana,
art. Ill, sec. 15; Oregon, Bellinger
ft Cotton 's Ann. Codes, Title XI, sec.
4993. See utatutes of other States
in Part VI below.

§ 412 RIGHTS OP CONSUMERS FROM DISTRIBUTORS. 627

Congtitution is merely declaratory of the restrictive principle of
.common law concerning the conduct of the business in question,
and the innovation (which was a great one) consisted in putting'
this principle. in the Constitution itself where it would be beyond
the control of the legislature which, it is well known, the Cali-
fornia constitutional convention distrusted. Thus in People v.
Stephens^ it is said that this constitutional provision meant to
**lay a stronger hand upon them than that of the legislature."
And in Merrill v. South Side Irr. Co.y^*^ **The evident intent of the
f ramers of our Constitution was to strike a blow at. the monopolies
which had grown up out of the sale, rental and distribution of
water, and by declaring such use a public use to bring it within
the control," etc. And in Fresno etc. v. Park,^® Mr. Justice
McFarland goes at length into the same history ; that the Constitu-
tion meant to lay a strong hand upon these monopolies, which
the legislature consequently was rendered powerless to favor, and
he further holds that the Constitution is solely restrictive and
grants nothing. He says in effect that the word **^franchise" in
section 2 of this article is surplusage, and that there is no grant of
any privilege by the Constitution which is solely restrictive. The
business is a private enterprise, but one affected with a. public in-
terest which the Constitution, affirming the common law, declares
shall subject it to public regulation and control.

While not intending here to do more than set forth the fore-
going general principle, it is a convenient place to give some other
decisions under this section.

Concerning the declaration that the use is a public use, it has
been said that it ** merely declares that the use of water appro-
priated for distribution, etc., is a public use, and that the State
may by law regulate it."^ Concerning the use of the word
* 'franchise" in another clause, it is said in the same case. **....
but the word was evidently employed in section 2 mainly for the
purpose of emphasizing the general declaration in section 1 that
the use of water for sale, distribution, etc., is a public use, and
with the notion, no doubt, that calling it a franchise would make
more clear and certain the intent to subject it to state regulation.
In all other respects the meaning and effectiveness of section 2

24 62 Oal. 209. 27 Fresno etc. Co. v. Park, 129 Cal.

25 112 Cal. 426, at 433, 44 Pae. 720. 441, 62 Pac. 87.

26 129 Cal. 442, 62 Pac. 87.

628 DISTRIBUTION OF WATER. § 413

would be the same if the words *is a franchise and' were not there."
This expression, however, was disregarded in San Joaquin etc.
Co. V. Merced County,^ where it was held that the Constitution in
some way went beyond the common law, and did confer a fran-
chise of some kind, which was held taxable. The decision is in-
consistent with the reasoning of the Park case, which has been
several times relied on in the supreme court.^

Concerning the use of the word ** appropriated" in this section,
the California court has held that it means any setting apart or
devotion of the waters to the purpose of sale, rental or distribu-
tion, and not merely a technical appropriation under the law of
appropriation.*^ It has been held that the place of the "appro-
priation," mentioned in the part of the section quoted, is the place
where the water is used,' and not necessarily the place where the
source of supply, th*e pumping plant and waterworks, or the divert-
ing dam, may be situated.**

The article in question provides for regulation of rates, pursuant
to which statutes have been passed.^ In case of refusal to supply
water in cities or towns in accordance with the section, forfeiture
of franchise and waterworks is provided ; but the constitutionality
of such provision has been questioned.^

C. PUBLIC DUTIES.

§ 413. Must Serve All the Public to the Extent of Capacity
(Compnlflory Service). — Since the law of public service is chiefly
framed to curb monopoly, so one of its leading features is that
the monopoly must hold out its service to all the public, to the
extent of the capacity of its distributing system or plant. As
was said in an early case:** ** Whenever water is appropriated
for distribution and sale, the public has a right to use it." One
in control of a public use of water is under the obligation to supply

28 2 Cal. App. 593, 84 Pac. 285. S2 See infra and Part VL

„,«"!! ^.^^^utZ V^^Rk^^' ®*''*" ^ ^^^o Canal Co. v. Park, 129

139 Cal. 23, 72 Pac. 395 ; Mahoney v! »7 W. ^ . v. Schottler, 110 U. S. 34.,

American L. & W. Co., 2 Cal. App. ^8 L. ed. 173, 4 Sup. Ct. Rep, 48.

185, 83 Pac. 267. ^ McCrary v. Beaudry, 67 OaL 120,

31 FeUows ▼. Los Angeles, 151 Cal. 7 Pac. 264.
52, 90 Pttc. 137.

§ 413

EIGHTS OF CONSUMERS FROM DISTRIBUTORS.

629

water to the beneficiaries of that use so long as they comply with the
conditions on which the use is administered.^ In a recent case it is
said:^ *'It is the settled doctrine of this State that a water com-
pany engaged in the administration of the public use of distribut-
ing water to the inhabitants of a community or neighboshood^
whether inside or outside of a city or town, is i;iot only under
a duty and obligation to supply the water in proper proportion
to the persons composing the class for which the use was created,
but further, that if such company, upon proper demand and tender
of the established rates, refuses to furnish the water, or threatens
to cut oflf the supply, a proceeding in mandamus may be main-
tained or an. injunction issued, to compel the service, or prevent
the deprivation thereof." This principle is one of general appli-
cation.*''

Since the company is thus bound by law to serve all the public,
it cannot demand a fee or bonus fox furnishing the service ; it may
collect only what is bona fide a rate or rental, and not what is only
a rate by subterfuge and might be really called an ** initiation fee"
or bonus.^

The duty of serving all is not changed by a transfer of the
water system; the successor is under the same duty as its
predecessor in this respect.^ How far this duty will prevent
abandonment of the business, quaere. '*We do not mean to say
that a corporation engaged in the distribution of water to public
uses may not abandon its property and quit the business, without
being subject to mandatory proceedings to compel it to continue
to carry it on. It may find it impossible to go on. Its supply may
become exhausted or be insufiScient for paramount needs ; the rates

85 Mahoney v. American L. & W.
Co., '2 Oal. App. 185, 83 Pac 267.

36 Fellows V. Log Angeles, 151 OaL.
52, 90 Pae. 137. Accord South Pasa-
dena V. Pasadena -L. & W. Go. (Gal
Sup., Jan. 2, 1908), 93 Pac. 490.

37 Gases sugra cited. Also see
State ▼. Minnesota etc. Co., 20 Mont.
198, 50 Pac. 420; Wilterding ▼. Green,.
4 Idaho, 773, 45 Pac. 134; Slosser v.
Salt River etc. Co., 7 Ariz. 376, 65
Pac. 332 ; Hajois t. Salt River etc. Co.,
8 Ariz. 285, 71 Pac. 944 ; Gould v. Mar-
icopa etc. Co., 8 Ariz. 429, 76 Pac.
600.

88 Wheeler v. Northern Irr. Co., 10
Colo. 582, 3 Am. St. Rep. 603, 17 Pac.

487; Northern etc. Co. v. Richards,
22 Colo. 450, 45 Pac. 423; San Diego
etc. Co. ▼. National City, 74 Fed. 79;
Lanning v. Osborne, 76 Fed. 319;
Schneider v. People, 30 Colo. 493, 71
Pac. 369, the last case concerning a
statute prohibiting a company from
exacting a bonus, and making re-
fusal to supply a misdemeanor. Colo.
Stats. 1887, p. 308. See similarly,
People V. Palermo W. Co., 4 Gal. App.
717.

80 Hildreth v. Montecito etc. Co.
(Cal.), 70 Pac. 672; Pasadena W. Go.
V. Pasadena (Cal. Sup.), 93 Pac. 490,
497, 498; Stanislaus W. Co. v. Bach-
man (Oal. Sup.), 93 Pac. 858.

630 DISTRIBUTION OF WATER. § 414

fixed by law may be too small to enable it to operate at a profit,
or without substantial loss; or, it may conclude, without reason
which the law would consider sufficient, that it will not continue.
In case of a natural person it might become physically impossible.
We- do not intend to declare that in any such case mandatory
process would be issued to compel the personal performance of the
duty. These questions are not now involved and we express no
opinion concerning them. But in such a case, it cannot continue
in absolute control of the water and water works appropriated
to the public service."^

§ 414. Without Unreasonable Conditions. — The company may
require payment in advance, and may make such other conditions
and regulations as are reasonable. Some of the conditions on
which it may insist are stated in the following: **As we under-
stand the duties imposed on corporations which have appropriated
water for sale or irrigating purposes, before they can be compelled
to perform that duty, there must exist the following conditions;
the same appearing in the complaint or petition for a writ: (1)
The land for which water is sought to irrigate must be within the
flow of said water ditch; (2) a showing that such corporation
has the water in quantity required to supply the one demanding
and all the others entitled; (3) that notice be given the irrigating
company of the amount of water required; and (4) payment of
the rates or tender thereof when due and an allegation of willing-
pess to pay when due."** It may require payment in advance,
but failing to do so, its remedy is by suit to recover the same,
and not by shutting off the water.*^

How far, it may prescribe the mode of use by the consumer is
likely to be a difficult question. It has arisen in Idaho in connec-
tion with attempts by the company to prohibit the practice, now
becoming of importance, called ** rotation, '* whereby a number of
consumers pool their individual rights and use the whole flow
for short periods of time, substituting a periodical use of the whole
for a continuous use of part. In a recent case ^ it was held that

40 Fellows ▼. Lo8 Angeles, 151 Cal. Northern Irr. Co. (Colo.), 94 Pac. 333.
52, 90 Pae. 137. See Sheward t. Citizens' etc. Co., 90

41 Cozzens v. North Fork Ditch Co., Cal. 635, 27 Pac. 439.

2 Cal. App. 404, 84 Pac. 342. 43 Helprey v. Perrault, 12 Idaho,

42 Shelby v. Fanners' etc. Co., 10 451, 86 Pac. 417.
Idaho, 723, 80 Pac. 222; Kimball v.

88 415-417 EIGHTS QP CONSUMERS FROM DISTRIBUTORS. 631

ctistomers of an irrigation company may agree among themselves
to use the water as they see fit, which may be by rotation, so long
as they ask only a continuous flow from the company. Having
entered into an agreement among themselves they may join as
plaintiffs in mandamus to compel the company to deliver the water,
though the company objected to the rotation among themselves.^

The test is undoubtedly whether the company's regulation or
contract concerning the mode of use is unreasonable.

A California statute ^ provides that the company shall have no
control over the water after its delivery to the purchaser.

§ 415. With Adequate Facilities. — Irrigation companies in
the public service class cannot lawfully undertake to supply con-
simiers beyond their capacity, and a consumer may get an injunc-
tion against an attempt to do so.^ The company must put in
necessary headgates on demand of a consumer.'*'^

§ 416. Without Discrimination — An attempt by the company
to bind its entire supply to a single consumer is illegal.^ Dis-
crimination in any form is hostile to the law of public service com-
panies.^

To the extent that the arid States consider the consumers ap-
propriators and recognize priorities among them,^ based on time
of commencement of use, the rule against discrimination seems to
be modified ; but in the States where the consumer is not regarded
as an appropriator, the rule against discrimination negatives
priorities iSnong consumers.

§ 417. At Reasonable Bates — ^The establishment of rates by
corporations in public service of this kind rests with such body as
the constitution or statutes of the State provide, but in the absence
of such provision, the courts will enjoin Xnrhere charges are unrea-

44 ihid ^^'y Blakely v. Ft. Lyon etc. Co., 31

4K iftQA « i« ^0^0. 224, 73 P&c. 249.

A»»u, p. 10. 47 Downey v. Twin Lakes Co.

^ McDermont v. Anaheim etc. Co., (Colo.), 92 Pac. 946.

124 Cal. 112, 56 Pac. 779; Lanning v. 48 Sammons v. Kearney Irr. Co.

Osborne (Cir. Ct.), 76 Fed. 319; New (Keb.), 110 N. W. 308.

La Junta etc. Co. ▼. KreybiU, 17 Colo. 49 See, hlaOy infra, sec. 419 et seq.,

App. 26, 67 Pac. 1026 ; La Junta etc. contracts for service.

Co. V. Hess, 6 Colo. App. 497, 42 Pac. 30 Next chapter.

632

DISTRIBUTION OF WATER

§ 418

sonable or excessive,*^^ or, where as fixed by the board, they are
unfair to the company.

§ 418. Same — ^Bate Regulation by Statute.— Public commis-
sions or boards are frequently given power to fix water rates.
Statutes to that end are constitutional.'^

In California the Constitution, article XIV, section 1, provides
that rates in cities and towns may be fixed by the board of super-
visors or town council or other governing body, and shall continue
in force for one year and no longer. Outside of cities and towns,
the Constitution leaves the manner of fixing rates to subsequent
legislation ; ^ pursuant to which statutes have been passed giving
boards of supervisors power to fibc rates." A city cannot authorize
(where such statutes exist) a water company to fibc its own rates.*®

51 Wheeler v. Northern Irr. Co., 10
Colo. 582, 3 Am. St. Bep. 603, 17 Pac.
487; San Diego ete. Go. ▼. San Diego,
118 Cal. 556, 62 Am. St. Bep. 261,
50 Pac. 633, 38 L. B. A. 460; Same v.
Jaspar, 110 Fed. 702; Osborne v. San
Diego etc. Co., 178 U. S. 22, 44 L.
ed. 961, 20 Sup. Ct. Bep. 860; Wilson
V. Perrault, 6 Idaho, 178, 54 Pac. 617.
Beasonableness of rates. Salt Biver
Co. V. Nelasen (Ariz.), 85 Pac. 117.

52 Spring Valley W. W. v. Schot-
ler, 110 U. S. 347, 28 L. ed. 173, 4
Sup. Ct. Bep. 48, Field, J., dissent-
ing, on the ground that the beneficiary
of a use (the public) cannot itself fix
the charge it will pay; but the con-
trary is now well settled. Spring Val-
ley W. W. V. Schottler. See Bose's
citations; also County of San Fran-
cisco V. Spring Val. W. Co., 48 Cal.

493; Spring Valley Waterworks v.
City of San Francisco, 82 Cal, 286,
16 Am. St. Bep. 116, 22 Pae. 910, 1046,
6 L. B. A. 756; San Diego W. Co. v.
City of San Diego, 118 Cal. 556, 62
Am. St. Bep. 261, 50 Pac. 633, 38 L.
B. A. 460; Santa Ana Water Co. t.
Town of San Buena Ventura, 65 Fed.
323; Boise etc. C!o. v. Boise C^ty
(Idaho), 123 Fed. 232, 59 C. C. A.
236; City of Denver v. Denver etc.
Co. (Colo.), 91 Pac. 918. .

53 In the absence of which or of
action by the board they may be fixed
by private contract. Fresno etc Go.
V. Park, 129 Cal. 437, 62 Pac. 87.

54 Stats. 1880, p. 16 V Stats. 1885,
p. 95; 1897, p. 49; 1901, p. 80; 1901,
p. 331. See next chapter.

56 Brummitt v. Ogden etc Co.
(Utah), 93 Pac 828.

§ 419

CONTEACT EIGHT.

633

CHAPTEE 11.

. RIGHTS OF CONSUMERS FROM CORPORATIONS BASED

ON CONTRACT.

S 419. Power to contract.

§ 420. Unreasonable contraets.

§ 421. Contracts fixing rates.

§ 422. Contracts granting easements.

§ 419. Power to Contract.— Binding itself by contract is not
per se a violation of any of the public service duties. A contract
that is unreasonable toward the consumer would be considered
illegal or one that discriminates against other consumers would
also be so considered. But contracts favorable to the consumer,
and not discriminatory, are under no inhibition. It was urged
in California that a contract binding the company to a consumer
** destroys the public use."^ The idea involved in the objection
is that the contract is per se discriminatory. But that the ob-
jection is unsound is well settled in California, as elsewhere.^

The leading case in California upholding the power to contract
for supply is Fresno Canal Co. v. Park.* In that case, Mr. Justice
McFarland said that the constitutional convention, in the provi-
sions concerning the use of water ''had particularly in view the
furnishing of water within municipalities, and determined that it
would itself handle and legislate upon that branch of the subject
so far as to leave little, if any, power to the legislature in the
premises. But nothing of the kind appears in the constitution
about water rights and ditches existing and running through min-
ing and agricultural districts, etc., outside of municipalities. As

1 Fresno Canal Co. v. Park, 129
Cal. 441, 62 Pac. 87; Stanislaus W.
Co. ▼. Baehman (Cal. Sup., Jan. 23,
1908), 93 Pac. 858.

2 ''But it is said tliat plaintiff has
entered into contracts with Bockefel-
ler, Horton, Legate and others, per-
sons of whom the plaintiff has secured
its water rights, to supply them, their
cattle, etc., with necessary water.

Very true. It also may engage with
every householder in the ^lage of
North Tarrytown to supply them with
water. This would not destroy the
public use. It would rather tend to
show use by many, and thus establish
that the use was for the public bene-
fit." Pocantico Waterworks Co. v.
Bird, 130 N. Y. 259, 29 N. E. 246.
» 129 Ckl. 441, 62 Pac. 87.

634

DI8TBIBUTION OF WATER.

I 419

to this latter class of property with respect to which private con-
tracts for compensation for the use of water has been the rule,
and apparently has been satisfactory to both purchaaen and con-
sumers, the convention apprehending that there might come evils
outside of municipalities somewhat similar to those feared within
them, took the precaution of declaring, so that such would be the
law beyond question, that the use of water appropriated for dis-.
tribution and sale should be a public use, and subject to the regula-
tion and control of the State. But it left to the I^islature the
power and discretion of regulating the sale of water outside of
municipalities if the time should come when, in its wisdom, it
thought such regulation was called for-— or to allow the people to
continue to freely contract on the subject as they had been ac-
customed continuously to do since before the State was organized
as a government Our conclusion is that the contract in-
volved in the case at bar is not made invalid by the provision of
the Constitution invoked by appellants."

The Pai^ case has been relied on in several subsequent cases.^
A California statute^ declares a similar freedom of contract,®
in the absence of statutes contrary to the terms of the contract J

Rights resting on contract must be distinguished from those
resting on the public duties of the company aside from contract.
Rights resting on a special contract possibly may be enforced by a
bill in equity for specific performance,® but they cannot (whereas
the non-contract right can) be enforced by mandamus.^

Damages may be recovered for a breach of the contract. **When
an irrigation company which contracts to furnish water to a con-
sumer negligently or willfully fails to furnish water in accordance

4 Inter alia, see San Diego etc. Co.
V. Souther, 104 Fed. 706, 44 C. C. A.
143; Stanislaus W. Co. ▼. Bachman
(Cal. Sup., Jan. 23, 1908), 93 Pae.
858.

5 1901, p. 331.

0 As does the section 11^ of the
act of 1885, p. '95, added 1897, p. 49.

7 Other cases concerning contracts
with irrigation companies, see Colo-
rado etc. Co. ▼. McFarland (Tex. Civ.
App.), 94 S. W. 400; Barstow Irr. Co.
V. aeghom (Tex. Civ. App.), 93 8.
W. 1023; Sammons v. Kearney Irr.
Co. (Neb.), 110 N. W. 308. *

8 Perrine v. San Jacinto etc. Co.

(Cal. App.), 88 Pac. 293, dietum.
See Hunt v. Jones, 149 Cal. 300, 86
Pac. 686 ; Cljne v. Benicia Water Co.,
100 CaL 310, 34 Pae. 714. See 9upra,
sec. 207. Such should be the law, but
see Cal. Civ. Code, sec. 3390, subd. 1.
9 State v. Washington Irr. Co., 41
Wash. 283, 111 Am. St. Bep. 1019, 83
Pac. 308; Perrine v. San Jacinto etc.
Co., 4 Cal. App. 376, 88 Pac. 293.
But see Orcutt v. Pasadena L. A W.
Co., Cal. Sup., Jan. 2, 1908, appear-
ing to authorize mandamus to enforce
a contract in this connection. See,
also, KimbaU v. Northern Irr. Co.
(Colo.), 94 Pac. 333.

88 420, 421

CONTEACT BIGHT.

635

with its contract, it is liable to the consumer for any damage suf-
fered in the loss or injury to hk crops by reason of such breach of
contract. "*•

§ 420. Unreasonable Contracts. — In the Park case a wide
freedom of contract was declared. In the circuit court of the
United States for the southern California district, Mr. Justice
Ross expressed great dissatisfaction with this case, because the lan-
guage used in it was not modified to inhibit contracts that were
discriminatory or were unreasonable to the consumer.^^ The facts
presented in the Park case, however, did not involve any such
question, which accounts for the broad language used in it; but
should the question arise, there can be little doubt that, the Cali-
fornia constitution having placed the restrictive principle against
unreasonable conduct of the business on high and secure ground,
the court will hold contracts unreasonable to the consumer or dis-
criminating against other consumers, to be illegal.

The California court has held that a contract providing for a
bonus before furnishing the water is illegal.*^ Contracts provid-
ing forfeitures of the rights thereunder, even when not invalid
as unreasonable, wiU be strictly construed.^^ As a general prin-
ciple, the duty of the company not to use its monopoly to enforce
extortionate demands cannot be evaded by contract. ''Irrigation
companies authorized to exercise the power of eminent domain are
qiLOsi public corporations, and cannot limit their liability to the
public by contract." **

§ 421. Contracts Fixing Bates — In California it is well set-
tled that the company and consumer may contract for permanent

10 Colorado Canal Co. ▼. McFarland
et al. (Tex. Cir. App.), 94 8. W. 403,
citing City of Ysleta v. Babbitt, 8
Tex. Civ. App. 432, 28 8. W. 703.
See, also, Sample v. Fresno Flume ft
Irr. Co., 129 Cal. 222, 61 Pac. 1085;
Northern etc. Co. v. Richards, 22 Colo.
450, 45 Pac. 423 ; Pawnee Land etc. Co.
V. Jenkins, 1 Colo. App. 425, 29 Pac.
381; Hewitt t. San Jacinto etc. Dist.,
124 Cal. 186, 56 Pac 893.

11 Souther v. San Diego etc. Co.,
112 Fed. 228.

12 Crow y. San Joaquin etc. Co.,
1^0 Cal. 309, 62 Pac. 562. See ante
sec. 413, Compulsory Service.

13 "Forfeitures are not favored by
the law, and whUe we do not say that
a ditch company may not, by apt
words in their contrac^ts or by-laws,
provide that a water right shaU be
forfeited, by failure to pay the price
for the carriage of water, we do say
that the words employed in the by-
laws of this company do not so oper-
ate." Cooper V. Shannon, 36 Colo.
98, 85 Pac. 175.

14 Headnote in Southwestern Re-
porter to Colorado etc. Co. v. Mc-
Farland (Tex. Civ. App.), 94 8. W.
400.

636 DISTRIBUTION OF WATER. • § 421

supply at fixed rates in the absence of public action fixing a rate.
The leading case is Fresno Canal Co. v. Park.*^ The law is con-
cisely put in a case in the United States circuit court of appeals
for the circuit in which California lies, reaching a similar result
before the Park case :

^' What is the trend and purport of the decision in that case, and
of .the other decisions of the supreme court of the State of Cali-
fornia to which reference has been made? They are to the effect
that, notwithstanding the fact that the Constitution declares that
the use of waters of the State appropriated for irrigation pur-
poses is a public use, and the further fact that, under the law of
1885, upon the petition of twenty-five consumers, the conunissioners
of the county may fix the rates to be charged by the company
and paid by the consumer, nevertheleas, until such rates are fibced
in pursuance of law, the corporation furnishing the water, and the
consumer receiving it, are left free to make such contracts as they
may see fit to make, and their agreement will be sustained by the
courts. In other words, there is no provision of the laws of the
State, and no principle of public policy which inhibits such con-
tracts."^®

Contracts for rates may, by proper words in the contract, be
made a lien on the land suppli^d.^''

This power to fix the rate by contract has not, as yet, reached
decision in the California State court when the public authorities
have acted in fixing a rate; up to the present the decisions have
dealt only with cases where no public action had been taken, leav-
ing the question of the effect of such public action on the contract
rate an open one. In the Federal courts for the circuit in which
California lies, however (ninth circuit). Judge Boss has rendered
two decisions. In Souther v. San Diego etc. Co.,^® he felt bound
by. the broad language of tbe Park case, to hold that the con-
tract rate prevailed, even though the Board of Supervisors sub-
sequently acted and fixed a lower rate. But the Park case ex-

.15 129 Cal. 441, 62 Pac. 87, 93 Pac. v. Same, 104 Fed. 706, 44 C. C. A.

858. Accord Stanislaus W. Co. v. 143. See, also, Souther v. San Diego

Bachman (Cal. Sup., Jan. 23, 1908). etc. Co., 112 Fed. 229; San Diego etc.

16 San Diego etc. Co. v. Souther, Co. v. Jaspar, 189 U. S. 445,. 47 L.

90 Fed. 164, 32 C. C. A. 548. This ed. 74, 23 Sup. Ct. Eep. 571; San

case was, after the rendition of this Diego etc. Co. v. Jaspar, 110 Fed.

opinion, allowed to go over until the 706.

decision of the Park case, pending at 17 See ante, sees. 217-220.

the same time, and after the decision 18 (Cal.), 112 Fed. 228.
in the Park case, was affirmed. Same

§ 422 CONTRACT BIGHT. 637

pressly left the question open, and had not decided it. The other
case is Boise City Irr. Co. v. Clarke,*® where Judge Ross in the
circuit court of appeals held (under a constitutional provision
similar to that of California) that when rates are, subsequent to
a contract, fixed by the supervisors, they prevail .as so fixed, at
least as to non-contracting consumers.^

A statute'* in California provides that a company collecting
a higher rate, than one fixed by supervisors shall forfeit its fran-
chise and waterworks.^ Another statute^ says expressly that
contracts with companies shall be valid, **any law or rule to
the contrary notwithstanding," but th^t '*no such contract shall
provide for the sale, rental, or distribution of any such water at any
rate exceeding the established rates fixed and regulated therefor
by the Board of Supervisors," etc., but adding: ''Nothing in this
act contained shall aflfect any contract made prior to the time that
the Board of Supervisors fix and establish the rates and regulations
for and under which water may be sold and supplied." ^

Probably it will be held optional with the consumer to keep
the contract, or to abandon the contract and demand the rate fixed
by the Supervisors ; abandoning his contract in toto if he abandons
it as to rates. But, aside from Judge Itoss' decision, the question
has not been passed upon.

§ 422. Contracts Oraatmg Easements to Consumers ^While

contracts look primarily to the fixing of rates, they also have in
view the securing of a permanence of supply. By proper words
it has been held in California that the contract may, to secure
this permanence, give the consumer a proprietary estate or interest
in the water right of the canal company and in its ditch. This
has been recently decided in Stanislaus Water Co. v. Bach-
man^' as a matter of construction of the words of the con-
tract. The words insisted on in that case were "That the
party of the first part agrees to furnish — ^through its canal from
the Stanislaus River — a flow of water sufScient to* fully ir-
rigate" the described land; together with words making the

10 (Idaho), 131 Fed. 415, 65 C. C. 28 1901,. p. 331.

A. 399. 24 See Stanislaus Water Co. ▼. Bach-

20 See Bothwell v. Consumers Co. man (Cal. Sup., Jan.' 23, 1908), 93
(Idaho), 92 Pae. 533. Pac. 858.

21 1880, p. 16. 25 (Cal. Sup., Jan. 23, 1908), 93

22 See 9upra, sec. 412, Constitution. Pae. 858.

638

DISTRIBUTION OF WATER.

8 422

contract perpetual, with the use of the word */ rental" as peculiarly
applicable to a grant of real estate, and with words that the com-
pany ''grants the right to use water from said canal on said lands
for domestic purposes,'* etc. In this case the court ^ said: **We
think it is also clear that the effect of the agreement was to confer
upon Threlfall a right to such portion of the water flowing from
the Stanislaus River through the canal of the company as should
be required for the full irrigation of the land, and to have the
canal and ditch used for the purpose of conducting the same to the
land, and that it is more than a mere personal covenant on the
part of the company The agreement to furnish the neces-
sary water from the canal from year to year, during the time
specified, and to deliver it upon the Threlfall lands for the irri-
gation thereof , for an agreed price, was in substance and effect,
an agreement for the sale of real property of the canal com-
pany. ' ' " In effect, this was a holding thaf the words of the con-
tract, granting a use and flow from a natural stream, granted an
interest in the usufructuary right of the coihpany in the stream ; ^
giving the consumer a proprietary interest approaching (though
not reaching) the Colorado view that the consumer is an appro-
priator from the natural stream, as set forth in the next chapter.
The contract construed is of very common form in California,
so that the rule is of great practical importance there.^

This idea has certainly always been the understanding of the
California legislature, as appearing inferentially in the wording
of statutes, though not expressly declared. The statute of 1897 ^
has a proviso that the act shall not invalidate any contract relating
to the sale or rental of ** easements and servitudes of the right to
the flow and use of water," and section 552 of the Civil Code,^'
declares concerning the right to have water from a company that
*'the right to the flow and use of said water is and shall remain
a perpetual easement to the land." Likewise the words of the

26 Mr. Justice Shaw rejidering the
opinion.

27 Threlfall was the predecessor of
the defendant consumer, the contract
right having passed to defendant by
purchase from Threlfall. In support
of this decision, see Fudickar v. East
Riverside Co., 109 Cal. 29, 41 Pac.
1024 ; Dorris v. Sullivan, 90 Cal. 279,
27 Pac. 216; Graham v. Pasadena L. &
W. Co. (Cal. Sup., Jan. 2, 1908), 93

Pac. 498; on the other hand, see Rich*
ter V. Union Lumber Co., 129 Gal. at
374, 62 Pac. 39.

28 Supra, sec. 155.

29 The same case holds these .'con-
tracts properly recorded if entered in
the book of ''miscellaneous'' records.

*30 Page 49, inserting sec. 11% into
the Act of 1885, p. 95.

31 Enacted 1875-76, p. 77.

S 422 . CONTRACT RIGHT. 639

Constitution looked to this view, in speaking of sale, rental, or
distribution as different things, meaning by sale a case of a city
supply company where the water itself is sold and *'made mer-
chandise of " as a liquid, as distinguished from its natural use and
flow; whereas by rental referring to these contracts dealing with
the usufructuary water right, and by distribution, dealing with
cases where the consumers may be the absolute owners of the
water rights without any proprietary interest thereto existing
in the company at all.

A rehearing having been granted in the Stanislaus case
(chiefly on grounds not involving the law of waters), the company
strenuously contended that the contract was merely one of sale
of water, of liquid, like the sale of gas in cities, and for service
in delivering it, and did not bind the usufructuary water rights
of the company nor give the consumer any proprietary interest
therein. Such is undoubtedly the effect of a contract with a city
supply company; it sells personal property, the water as mer-
chandise, and does not profess to grant a perpetual flow from a
natural stream.^ But it is otherwise with an irrigation com-
pany— a different course of business and intention is involved.
The question, when depending on contract, is always one of con-
struction whether the subject matter of the contract is the water
or the water right. On the second hearing the supreirle court
reafSrmed its decision as above.^

32 Hesperia L. & W. Co. v. Gardiner . rel. Heyneman v. Blake, 19 Gal. 579.
(Cal. App.), 88 Pac. 286; People ex Supra, sec. 155 et seq.

33 See supra, sees. 155, 217-220.

640 DISTBIBUTIOX OF WATER. S 423

CHAPTER III.

RIGHTS OP CONSUMERS FROM CORPORATIONS AS AP-

PROPRIATORS.

§ 423. The Colorado rule.

{ 424. Origin of the Colorado rale.

j 425. Expressions of the rule.

8 426. Results of the rule — Priorities.

g 427. Same.

§ 428. Same — ^Parties to actions.

§ 423. The Colorado Rule.— In Colorado and the arid States
generally (following the. lead of Colorado) the law of appro-
priation has so completely become the source of rights in waters,
that the rights of consumers from corporations are made as far as
possible to conform to the law of appropriation. The rule of the
arid States is that the consumer from a ditch is, through the inter-
mediate agency of the ditch, an appropriator from the natural
stream from which the company's ditch heads. The water com-
pany is thus made merely a common carrier of water. This view
is also obtaining footing in California,^ but is a new principle
there, as yet, though firmly settled in the arid States.

The principle is that the right of the consumer is not merely
a right of service (without any proprietary right in the water
rights or water system), but is a proprietary right in the natural
stream as though the consumer had himself diverted the water from
its natural source. The consumer pro tanto is the appropriator
and proprietor of the water right, and the canal company but a
common carrier or agent. In the absence of some such rule, the
consumer, as set forth in a preceding chapter, has only a right
of service without any proprietary interest in the real estate of the
distributing system. But courts are anxious to protect the ir-
rigator and give stability to his rights, which is forwarded by re-
garding his rights as more substantial than merely a right of ser-
vice. The California court held that a proprietary right may pass

1 See sec. 422, supra.

8 423

CONSUMERS AS APPBOPBIATOBS.

641

to the consumer by contract, and the rule is thus made general
in California, since the contract in the case in question was one
of a very common form, one of the reasons for the California
decision being given at the oral argument by Mr. Justice Shaw
that the form of contract involved had been in use in the San
Joaquin Valley for thirty years. But even aside from contract,
in the arid States the rule has long been established that the con-
sumer has a proprietary right, wholly irrespective of contract,
and without the intermediacy of a grant. The consumer's right
is that of an appropriator as by original acquisition as distin-
guished from a derivative right of service from year to year.

In Idaho,^ in adopting this rule, the consumer's rights were
worked out on the basis of his being an appropriator, but Sulli-
van, Judge, pointed out the view that the consumer was not an
appropriator, but a member of the public dealing with a public
service corporation. The result as between the consumer and
the company would have been the same on the latter treatment (so
far as compulsory service was involved) , and the opinion of Sulli-
van, J., points out the distinction between a derivative rental right
from year to year against a company, and a perpetual right by
original acquisition.' Helm, C. J., did the same in a leading Colo-
rado case.'* But the rule is now well established in the following
States that the consumer is an appropriator: Arizona, Colorado,
Idaho, Nebraska, New Mexico, and probably the other arid States
also.**

A case in California says the consumer is not per se an appropria-
tor, and has not (aside from the contract) any proprietary right
in the water rights or water system whatsoever.® In an Oregon

2 Hard ▼. Boise etc. Co., 9 Idaho,
5S9, 76 Pac 331, 65 L. B. A. 407.

3 See Creer v. Baneroft W. Co.
(Idaho), 90 Pae. 228.

4 Combs V. Ditch Co., 17 Colo. 146,
31 Am. St. Bep. 375, 28 Pac. 966.

5 Afieona. — ^losser v. S^lt Biver
Co., 7 Ariz. 376, 65 Pae. 332; Gould
V. Maricopa etc. Co., 8 Ariz. 429, 76
Bic 600; Salt Biver Co. v. Nelssen
(Ariz.), 85 Pac. 117; Hargrave v.
HaU, 3 Ariz. 252, 73 Pac. 400.

Colorado, — Combs v. Agricultural
Ditch Co., 17 Colo. 146, 31 Am. St.
Bep. 375, 28 Pac 966; Wyatt ▼. Lar-
imer etc. Co., 18 Colo. 298, 36 Am. St.
Bep. 280, 33 Pae. 144; VHieeler v.

Water Bighta — 41

Northern etc. Co., 10 Colo. 582, 3 Am.
St. Bep. 603, 17 Pac. 487.

Idaho. — ^Hard v. Boise City etc. Co.,
9 Idaho, 589, 76 Pac. 331, 65 L. B. A.
407. But see Creer ▼. Baneroft W.
Co. (Idaho), 90 Pac. 228; Farmers'
Co. y. Biverside Co. (Idaho), 94 Pac.
761.

Nebraska. — Farmers' Irr. Dist. v.
Frank, 72 Neb. 136, 100 N. W. 286.

New Mexico. — Albuquerque etc. Co.
▼. GKitierrez, 10 N. Mex. 177, 61 Pac.
867.

6 Fuller ▼. Azusa etc. Co., 138 Cal.
204, 71 Pac. 98. But see Graham v.
Pasadena L. A W. Co. (Cal. Sup.,
Jan. 2, 1908), 93 Pac. 498.

642 •* DISTBIBUTION OP WATER. $ 424

case/ the court, after discussing the Colorado decisions and pointing
out the difference between the Colorado and Oregon statutes, im-
plied that the company which made the diversion would be the ap-
propriator. In California the consumer is certainly not per $e an
appropriator,® though he may by contract receive a proprietary in-
terest which approaches the other view, and gives the consumers
a greater right than one of service.*

§ 424. Origin of the Oolcnrado Bole.— The earliest cases in
California from which the law of appropriation arose (including
the original precedent of Irwin v. Phillips) are cases of this kind,
the water being appropriated for sale to others. The early eases
saw no difficulty in regarding the canal company as the appro-
priator. As elsewhere set forth, the actual application to beneficial
use was (and in California still is) regarded as matter subsequent
to the appropriation, on the principles' of abandonment.^^ The
taking of the wat^r into possession was the appropriation. This
could be done as well by one who intended to sell it as by one
who meant to use it himself. Upon its being wasted, the right
ceased ; but beneficial use actually occurring ultimately, the idea of
such waste was negatived, and there was no ground to cut off the
possession of the canal company. The canal company, as any
appropriator, was regarded as being entitled to protection in his
possession until it was shown that the water was not in any way
reaching a beneficial use. A sale for a beneficial use, consequently,
was itself a beneficial use so far ajs necessary to prevent a lapse of
the right, the actual application not being a condition precedent to
appropriation, but matter subsequent thereto, the failure of it cut-
ting off a right, not the application making one.^^

But regarding the use as a requisite before the appropriation can
exist at all, which is now well settled in the arid States, this has
been made a ground on which the view making the consumer an
appropriator rests. The carrier's diversion must unite witli the
consumer's use in order that there may be a complete . appropria-

7 Nevada etc Co. v. Bennett, 30 Or. 9 Stanislaus etc. Co. v. Ba^flrnian
59, 60 Am. St. Eep. 777, 46 V^ 472. (j^^^ 23, 1908), 93 Pac. 858.

8 Fuller V. Azusa etc. Co., 138 Cal. ' '' , ,g
204, 71 Pac. 98; Richey v. Bast Bed- *® ^**P^<»' «®««- ^^^^ ^^^'

lands etc. Co., 141 Cfcl. 221, 74 Pac. " See Nevada D^ Co. v. Bennett, 30

754; Souther v. San Diego etc. Co., Or. 59, 60 Am. St. Rep. 777, 46 Pac.

112 Fed. 228, 121 Fed. 347, 67 C. C. 472.
A. 561.

i 425

CONSUMERS AS APP^OPBIATORS.

643

tion, and the coDsumer is then considered the appropriator because
the actual use is made by him and not by the company. ^^ Per-
haps the leading case is Combs v. Agricultural Ditch Co.,^^ hold-
ing that the canal company is only agent, and consumers are the
appropriators, so that priority gives the better right among con-
sumers. Helm, C. J., concurring specially, points out that all
the results really sought for in the case, namely, compulsory ser-
vice under reasonable terms, would be accomplisiJiied by applying
the law of public service companies without applying the law of
priority to consumers inter se.

In Colorado the rule seems to have also resulted from the
provision in the Constitution that the right to appropriate un-
appropriated water shall never be denied.^^ In some cases this
view also arises from the provision that the water right shall be
inseparably attached to the land where used.^*

§ 425. Expressions of the Bule — ^Mr. Justice Helm char-
acterized the consumer as the ** tiller of the soil," and the ditch
company as the ^^ carrier,^ ^^^ In the Southworth case the same
judge used the word ** co-consumers" to indicate consumers taking
from the same ditch, though in the Combs case ^^ his remarks are
somewhat inconsistent with the above. In Wyatt v. Larimer &
Weld Irr. Co.l® Mr. Justice (Joddard says: "That a valid appro-
priation of water from a natural stream constitutes an easement
in the stream, and«that such easement is an incorporeal heredita-
ment, the appropriation being in perpetuity, cannot well be dis-
puted." He refers to the discussion of property in water by Wash-
bum in his work on Easements and Servitudes,** and Angell on
Watercourses,^ and adds: '*The right acquired to water by an ap-

12 Wheeler v. Northern Irr. Co., 10
Colo. 582, 3 Am. St. Bep. 603, 17 Pac.
487; FarmerB' Highline Co. v. South-
worth, 13 Colo. Ill, 21 Pac. 1028, 4
L. B. A. 767; Combs v. Agricultur&l
D. Co., 17 Colo. 146, 31 Am. Sf. Bep.
375, 28 Pac. 966; Wyatt v. Larimer
Irr. Co., 18 Colo. 298, 33 Pac. 144,
reversing 1 Colo. App. 480, 29 Pac.
906.

18 17 Colo. 146, 31 Am. St. Bep.
375, 28 Pac. 966.

14 Wheeler v. Irr. Co., 10 Colo. 582,
3 Am. St. Bep. 603, 17 Pac. 487.

15 Gould V. Maricopa etc. Co., 8

Aris. 429, 76 Pac. 598; Slosser v.
Salt Biver Co., 7 Ariz. 376, 65 Pac.
332; Farmers' Irr. Cb. v. Frank, 72
Neb. 136, 100 N. W. 286.

i« Wheeler v. Northern Irr. Co., 10
Colo. 582, 586, 3 Am. St. Bep. 603, 17
Pac. 487. See, also. Farmers' High'
line Co. v. Southworth, 13 Colo. Ill,
119, 21 Pac. 1028, 4 L. B. A. 767.

IT 17 Colo. 146, 31 Am. St. Bep.
375, 28 Pac. 966.

18 18 Colo. 298, 36 Am. St. Bep.
280, 83 Pac. 144.

10 Page 276.

so See. 141.

644 DISTRIBUTION OF WATER. { 426

propriator under our system is of the same character as that de-
fined by the foregoing authorities as an incorporeal hereditament
and easement. The consumer under a ditch possesses a like prop-
erty. He is an appropriator from the natural stream, through
the intermediate agency of the ditch, and has the right to have
the quantity of water so appropriated flow in the natural stream,
and through the ditch for his own use We adhere to the doc-
trine 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 t;he purpose of aiding consumers in the exercise
of their constitutional rights, as well as a private enterprise prose-
cuted for the benefit of its owners."^* A recent case^ putft it:
^^It hardly seems necessary to again state, as this court so often
has stated, that the perpetual right to have water carried by a
ditch constitutes an easement in the ditch. "^

In an Idaho case, respondent contended ''that the user has no
property interest in the water which he has taken from the re-
spondent's canal." Held, ^'We cannot give our consent to this
proposition."^ In an Arizona case it is said: ''It follows, there-
fore, that all persons owning lands under the flow of such a canal
which have been irrigated by means of water furnished by such
canal become appropriators and possessed of rights of appro-
priation in the order of their priority. ' ' ^

§ 426. Results of the Bule— Priorities.— The chief result of
this view which has given rise to litigation id that consumers, being
appropriators from the natural stream, have diflferent priorities
among themselves, thereby letting in the various inequalities among
consumers that result from the law of appropriation. Much liti-
gation has arisen over whether they shall be made to suffer ratably
in times of deficiency or whether prior consumers have a para-
mount right to their full supply.^ It has been held that the irri-

21 Wyatt V. Larimer & Weld Irr. 22 Farmers' etc" Co. v. New Hamp-

Co., 18 Colo. 298, 308, 36 Am. St. shire etc. Co. (Colo.), 92 Pac. 290. '
Bep. 280, 33 Pac. 144. See, also, 28 Qtiaere, whether there can be

Standart v. Farmers' etc. Co., 26 mjeh a thing as an easement in an

Colo. 202, 54 Pac. 626; Grand YaL easement.

Irr. Co. v. Lesher, 28 Colo. 273, 65 24 Hard v Boise etc Co 9 Idaho

Pac. 44; Farmers' etc. Co. v. Sonth- .rq tr^J' qqi%f t' n^ ISt^'

worth, 13 Colo. Ill, 21 Pac. 1028, 4 ^»^ !f ^f ' ^^^ 66 L. R. A. 407.
L. R. A. 767; Farmers' etc. Co. v. ^5 Gonld v. Mancopa etc. Co., 8

New Hampshire etc. Co. (Colo.), 92 Ariz. 429, 76 Pac. 598.
Pac. 290. 26 See supra, sec. 52.

§ 427

CONSUMERS AS APPROPRIATORS.

645

gation company is merely an intermediary agency,^ and the con-
sumers are the appropriators, having differing priorities and can-
not be forced to pro-rate,^® and by-laws, rules or regulations of the
company to the contrary are invalid as contrary to the constitu-
tion,^ and likewise a statute to make them pro-rate is held in-
hibited by the constitution.^® But, on the other hand, a contract
to pro-rate, made with the company is enforced.^^ Priority among
consumers was recognized in Arizona.^^

The consumer's right to change the place of his diversion is that
of an appropriator,^ and he may change the use to different land
if other consumers are not injured. The company has no right to
object.** The law of change of use elsewhere set forth governs
here. As a general principle, the consumer looks to the law of
appropriation for his rights, as well as to the law of public service
companies.

§ 427. Same. — On the other hand, in the absence of this view,
consumers are on an equality and have no priority. Having all a
simple right of service, in time of deficiency, they must share
ratably the loss, as must consumers from gas companies, for ex-
ample. To prefer one to another and give him priority in service
would be discrimination against the others; and the law of public
service prohibits discrimination among consumers. Consequently,
where the consumer is not considered an appropriator, priorities
among consumers are not recognized, but they are placed on an
<jquality regardless of the relative time of beginning use. In times
of drought, consumers share ratably, and the company has no
right to prefer some over others.*^ In the absence of a provision
to the contrary in the certificates of stock, or in the resolutions.

27 Wheeler v. Northern Colo. etc. '
Co., 10 Colo. 582, 3 Am. St. Rep. 603,
17 Pac. 487; Combs v. Agricultural
Ditch Co., 17 Colo. 146, 31 Am. St.
Rep. 375, 28 Pac. 966.

28 Ihid., and Farmers' etc. Co. v.
Southworth, 13 Colo. Ill, 21 Pac.
1028, 4 L. R. A. 767 ; Same v. White.
32 Colo. 114, 75 Pac. 415; but contra,
Wyatt V. Larimer etc. Co., 1 Colo.
App, 480, 29 Pac. 906; Larimer etc.
Co. V. Wyatt, 23 Colo. 480, 48 Pac.
528.

29 Combs V. Agricultural Ditch Co,,
17 Colo. 146, 31 Am. St. Rep. -375, 2S
Pac. 966.

30 Farmers' etc. Co. v. White, 32
Colo. 114, 75 Pac. 416, citing other
authorities.

31 O'Neil V. Fort Lyon etc. Co.
(Colo.), 90 Pac. 849; Creer v. Ban-
croft W. Co. (Idaho), 90 Pac. 228.

32 Hargrave v. Hall, 3 Ariz. 252,
73 Pac. 400.

33 Knowles v. Clear etc. Co., 18
Colo. 209, 32 Pac. 279.

34 Ibid.; and Hard v. Boise etc. Co.,
9 Idaho, 589, 76 Pac. 331, 65 L. R. A.
407.

36 Souther v. San Diego etc. Co.»
112 Fed. 228, 121 Fed. 347, 57 C. C.
A. 561.

646 DISTRIBUTION OF WATER. $ 428

by-laws or charter authorizing their issue, or other writing, con-
sumers are to be regarded as being equal in right, which is but an
obvious application of familiar principles to the relations of the
parties.^

■

§ 428. Same— Parties to Actions. — The question has also given
rise to some confusion in Colorado in respect to parties to actions.
The canal company will b^ regarded as itself an appropriator for
the purposes of suit against it,^ and may bring suit as appro-
priator against a wrongdoer without the consumers being neces-
sary parties.^ On the other hand, a consumer may himself as
appropriator enjoin a diversion without the corporation being a
necessary party ,®^ or may bring an action to quiet title to his
water right against' the company.^ When sued the defendant
company and its grantors are trustees for the stockholders and con-
sumers, and bound to protect the interests of all in determining
priorities.*^

The consumer-appropriators are held to have no such conununity
of interest as to allow joinder in a suit for specific performance
against the water company .**

The corporation represents the stockholders for the purpose of
suits against other corporations taking water ,^ but not for a suit
to prevent one consumer being forced to pro-rate with the others.
Such a suit must be brought against the other consumers.'^

The canal company is alone the proper party in proceedings for
determination of priorities.*^

Some confusion has thus arisen from regarding the consumer as
an appropriator.

36 Richey V. East Redlands Co., 141 tiiral Ditch Co., ^2 Colo. 513, 55 Am.
Cal. 221, 74 Pac. 754. . St. Rep. 149, 45 Pae. 444; Montrose

37 I^rmers' etc. Co. v. Agricultural Canal Co. v. Loutsenhizer Ditch Co.,
etc. Co., 22 Colo. 513, 55 Am. St. Rep. 23 Colo. 233, 48 Pac. 532: O'Neil ▼.
149, 45 Pac. 444. Ft. Lyon etc. Co. (Colo.), 90 Pac.

38 Town of Sterling v. Pawnee Co. 849.

(Colo.), 94 Pac. 339; Montrose etc. 42 Creer v. Bancroft Water Co.

Co. V. Loutsenhizer, 23 Colo. 233, 48 (Idaho), 90 Pac. 228.

on m'm j t : o a _i oao ^ Combs V. Farmers' etc. Go.

30 Clifford V. Lameu, 2 Anz. 202, /ri«i^ \ qq t>«« 9o«
11 Pac 397 (Colo.), 88 Pac. 396.

40 Kimbail v. Northern Irr. Co. ^ Farmers' etc. Co. v. White, 32

(Colo.), 94 Pac. 333. Colo. 114, 75 Pac. 416.

« Supply Ditch Co. v. Elliott, 10 « Supra, sec. 404. See Farmers'

Colo. 327, 3 Am. St. Rep. 586, 15 Pac. Co. v. Riverside Irr. Dist. (Idaho), 94

691; Farmers' Ditch Co. v. Agricul- Pac. 761.

§ 429 IRRIGATION DISTRICTS. 647

CHAPTER IV.

IRRIGATION DISTRICTS.

9 429. Purpose.

{ 430. Califoniia.

9 431. Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, Oregon, Texas,

Utah, Washington.
9 432. Comments.

§ 429. Purpose. — The whole object of the legislation au-
thorizing the organization of irrigation districts is to enable
owners of lands susceptible of irrigation from a common source
and by the same system of works to form a district composed of
such lands. The district when formed is a public corporation for.
the sole, purpose of obtaining and distributing such water as may
be necessary for the irrigation thereof, thus enabling each one to
have for his land in the district the benefit of a common system
of irrigation, and bringing about the reclamation of the land of
the district from aridity to a condition of suitability for cultiva-
tion. It was recognized that without such a common system the
individual landowners might be unable to obtain water for the
irrigation of their lands. A work which would be for the public
benefit and general welfare, viz., the reclamation from aridity
of large portions of the lands of the State, might never be accom-
plished if left to individual enterprise. The irrigation district
legislation, under which a public municipal corporation may be
created for the purpose of furnishing water for the irrigation of
the land within the district, has been sustained upon the same
ground as has the levee and reclamation district legislation. This
is, in effect, that the land included within the limits of such a dis-
trict requires, by reason of its situation and condition, the protec-
tion or reclamation thus made possible, and that it is for the public
welfare that such protection or reclamation should be afforded such

land.i

In the rest of this chapter no attempt wjiatever is made at com-
pleteness.

1 Mr. Jostice Angellbtti in Jenison ' v. Redfield, 149 Cal. 500, 87 Pac. 62.

648

DIOTRIBUTION OP WATER

S 430

The Wright Act of California, while never doubted in the State
conrt, was early held nnconstitntional by Judge Boss in the United
States circuit court for the southern district of California,* but
the supreme court of the United States reversed this decision on
appeal.^ The constitutionality of the principle is now well settled.

§ 430. OaUfcmia. — ^An outline of the present California stat-
ute is given in the statutes hereafter.

Before the enactment of the Wright Act, legislation existed
for the formation of ''reclamation districts" to reclaim swamp
lands,^ and an early case upholding the. constitutionality of those
acts contained a dictum that such law could be passed also for the
formation of districts to irrigate lands.' In 1872 the legislature
passed an act upon similar lines,* providing that owners of land
susceptible of one mode of irrigation may join in the formation
of a corporation for the common purpose, contributing the water
rights owned by each, or acquiring new ones in the usual ways.
In 1887^ the act well known as the Wright Act was passed, an
elaborate statute providing for the formation of quasi municipal
corporations for this purpose.*

The Wright Act is constitutional.* It is legislation for a public
purpose.^* The Confirmatory Act, added to the Wright Act to
establish validity of bonds and organization, is also constitutional.^^
Irrigation districts may take property by eminent domain.** The
district holds its property as trustee for the land owners.*^

2 Bradley v. i^Ubrook Irr. Dist.,
68 Fed. 948.

3 Fallbrook Irr. Dist. ▼. Bradley,
164 U. 8. 112, 41 L. ed. 369, 17 Sup.
Ct. Eep. 56. *

4 Supra, Bee. 103.

0 Hagar v. Board of Supervisors, 47
CaL 222.
e Stats. 1871-72, pp. 945-948.

7 Stats, of March 7, I887.

8 Repealed in 1897 and a new
■imilar aet — sometimes called the
Bridgford Aet — substituted, which has
been since amended. See statutes,
infreL

» Turlock Irr. Dist. v. Williams, 76
Oal. 360, 18 Pac. 379; Central Irr.
Dist. ▼. De Lappe, 79 Gal 351, 21
Pac 825 (relying on reclamation dis-
trict cases) ; Crall ▼. Poso Irr. Dist.,
•7 Cal. 140, 26 Pac. 797; In re

Madera Irr. Dist., 92 Cal. 296, 27 Am.
St. Bep. 106, 28 Pac. 272, 14 L. B. A.
755 (relying on reclamation district
eases) ; Fallbrook Irr. Dist. ▼. Brad-
ley, 164 U. 8. 161, 41 L. ed. 369, 17
Sup. Ct. Bep. 56.

10 In re Madera Irr. Dist., 92 CaL
296, 27 Am. St. Bep. 106, 28 PftC. 272,
14 L. B. A. 755.

11 Crall ▼. Poso Irr. Dist., 87 Cal.
140, 26 Pac. 797; Board of Dii^cton
T. Tregea, 88 Cal. 334, 26 Pac 237;
In re Madera Irr. Dist., 92 CaL 296,
27 Am. St. Bep. 106, 28 Pac 272,
14 L. B. A. 755.

12 Turlock Irr. Dist. v. WilBams,
76 Cal. 360, 18 Pac. 379; Lindsay Irr.
Dist. V. Mehrtefls, 97 CaL 679, 32 Pac.
802.

ts Merchants' Bank y. Esoondido
Irr. Dist., 144 CaL 329, 77 Pac 937.

S 430

IRRIGATION DISTRICTS.

649

The court has several times passed upon and construed the
provisions for proceedings on organization, the inclusion and ex-
clusion of land, and the issuance of bonds.^^ The confirmatory
decree establishing that the organization and the bonds are valid
is a decree in rem binding upon the whole world.^^ Quo warranto
by the attorney general will not lie to declare the organization
invalid after the confirmatory decree has been rendered, for it is a
collateral attack upon the confirmatory decree.^® But the con-
firmatory decree may be opened in direct attack on the ground of
fraud.^''

The decisions of the Board of Supervisors in including and ex-
cluding lan4 and similar matters on organization are held con-
clusive upon the courts.^^ In the confirmatory proceedings the
directors have the burden of proving the validity of the organiza-
tion and of the bonds,^^ and the statutory checks upon the crea-
tion of bond Hens of the board of directors should be strictly en-
forced.^ The land owner must be afforded due process of law
ia the issuance of bonds and the creation of. liens upon his land.^^

Assessments may be levied and enforced.^ When the directors
refuse to make the levy, mandamus lies by the bondholders against
the Board of Supervisors to force the supervisors to make the levy ^

14 Central In. Dist. v. De Lappe,
79 Cal. 351, 21 Pac. 825; Board of Di-
rectors T. Tregea, 88 C3al. 334. 26 Pac.
237; S. C, 164 U. S. 179, 41 L. ea.
395, 17 Snp. Ct. Rep. 52; In re
Madera Irr. Dist., 92 Cal. 296, 27 Am.
St. Rep. 106, 28 Pac. 272, 14 L. R.
A. 755; CnUen v. Glendora W. Co., 113
Cal. 503, 39 Pac. 769, 45 Pac. 822;
In re Central Irr. Dist., 117 Cal. 382,
49 Pac. 354 (distinguishing De Lappe
case.)

15 Board of Directors v. Tregea,
88 Cal. 334, 26 Pac. 237; S. C, 164
U. 8. 179, 41 L. ed. 395, 17 Sup. Ct.
Rep. 52; In re Madera Irr. Dist.,
92 Cal. 296, 27 Am. St. Rep. 106, 28
Pac. 272, 14 L. R. A. 755; Rialto
Irr. Dist. v. Brandon, 103 Cal. 384, 37
Pac. 484; Directors v. Abila, 106 Cal.
365, 39 Pac. 793; Cullen v. Glendora
W. Co., 113 Cal. 503, 39 Pac. 769,
45 Pac. 822.

16 People V. Selma Irr. Dist., 98
Cal. 206, 32 Pac. 1047; People v.
Linda Vista Irr. Dist., 128 Oil, 477,
61 Pac. 86 (a leading case upon the

nature of the confirmatory decree) ;
People V. Perris Irr. Dist., 132 Cal.
289, 64 Pac. 399 (af&rming Linda
Vista case) ; People v. Perris Irr.
Dist., 142 Cal. 601, 76 Pac. 381.

17 People V. Perris Irr. Dist., 142
Oal. 601, 76 Pac. 381.

18 Board of Directors v. Tregea, 88
Cal. 334, 26 Pac. 237; S. C, 164 U. S.
179, 41 L. ed. 395, 17 Sup. Ct. R«p.
52.

19 Directors v. AbUa, 106 Cal. 365,
39 Pac. 793.

20 Cullen V. Glendora W. Co., 113
Cal. 503, 39 Pac. 769, 45 Pac. 822.

21 Merchants' Bank v. Esoondido
Irr. Dist., 144 Cal. 329, 77 Pac. 937.

22 Tregea v. Owens, 94 Cal. 317,
29 Pac. 643; Hughson v. Crane, 115
Cal. 404, 47 Pac. IfiO, affirmed in
Boskowitz V. Thompson, 144 Gal. 724,
78 Pac. 290; Baxter v. Vineland Irr.
Dist., 136 Cal. 185, 68 Pftc. 601 ; Best
y. Wohlford (Cal. Sup.), 94 Pac. 98.

23 Nevada Bank v. Board of Super-
visors (Oal. App.), 91 Pac. 122.

650

DISTRIBUTION OP WATER.

S 430

(though bondholders do not find this much practical satisfac-
tion). Poles, wires, etc., of the Western Union Telegraph Com-
pany within the irrigation district are not assessable by th^ district.
They are easily removable, and in no sense essential to the support
of that to which they are attached, and are not real property with-
in the meaning of the irrigation district law, but are personal prop-
erty, not assessable for the revenue purposes of the district.^*

The districts are public corporations,^ and mandamus lies by the
bondholders to enforce payment of bonds.^ Bids are required in
regard to work.^ The fact that a landowner for five years had
used water beyond the limits of the district under a claim of right
to do so gave him no right to continue such unwarranted use.*
Dissolution must not affect the validity of the bonds.^

Concerning irrigation districts generally see also cases in note.^
The landowner within an irrigation district has not any absolute
title to a specific share of the water, nor can he use any water out-
side of the district.'^ In this case just cited the objects of the
statute are generally discussed by Mr. Justice Angellotti.** **The
ultimate purpose of a . district organized under the Irrigation
Act is the improvement, by irrigation, of the lands within the dis-
trict. It can, under the law, be organized and exist and acquire
property only for such purpose. This, we think, is so clearly ap-

24 Western Union etc. Go. ▼. Mo-
desto Irr. IHst., 149 Gal. 662, 87 Pac.
190.

25 Grail V. Poso Irr. Diet., 87 Gal.
140, 26 Pac. 797; People v. Turnbull,
93 Gal. 630, 29 Pac. 224.

26 Hewel y. Hogin, 3 Gal. App. 248,
84 Pac. 1003.

27 Healej v. Anglo etc. Bank, 6 Gal.
App. 278, 90 Pac. 54.

28 Jenison v. Bedfield, 149 Gal. 500,
87 Pac. 62.

20 Herring y. Modesto Irr. Diat., 95
Fed. 705.

80 Palmdale Irr. Diet. v. Rathke, 91
Cal. 538, 27 Pac. 783; Decker y.
Perry (Cfel.), 35 Pac. 1017; People
y. Jefferds, 126 GaL 296, 58 Pac. 704 ;
Sechrist V. Rialto Irr. Dist., 129 Gal.
640, 62 Pac. 261; Escondido St. S.
Dist. V. Escondido Seminary, 130 Gal.
128, 62 Pac. 401 ; Stimson y. Alessan-
dro Irr. Dist., 155 Gal. 389, 67 Pac.
496; Neyada Bank y. Poso Irr. Dist.,

140 Cal. 344, 73 Pac. 1056; Best y.
Wohlford, 144 Gal. 733, 78 Pac. 293.

In the Federal courts: Bradley y.
Fallbrook Irr. Dist., 68 Fed. 948;
Miller y. Perris Irr. Dist., 85 PecL
693; Shepard y. Tulare Irr. Dist., 94
Fed. 1; Herring y. Modesto Irr. Dist.,
95 Fed. 705; Thompson y. Perris Irr.
Dist, 116 Fed. 769; Perris Irr. Dist.
y. Thompson, 116 Fed. 836, 54 G. G. A.
336; People y. Brown Valley Irr.
Dist., 119 Fed. 538; Board of Super-
visors y. Thompson, 122 Fed. 860, 59
C. G. A. • 70 ; Marra y. San Jacinto
Irr. Dist., 131 Fed. 780; Wright y.
East Biyerside Irr. Dist., 138 F^. 313,
70 G. G. A. 603; Falbrook Irr. Dist.
V. Bradley, 164 U. 8. 161, 41 L. ed.
369, 17 Sup. Gt. Eep. 56; Tregea y.
Modesto Irr. Dist., 164 ,XJ. S. 179, 17
Sup. Ct. Rep. 52, 41 L. ed. 395; Tu-
lare Irr. Dist. y. Shepard, 185 U. S. 8,
46 L. ed. 773, 22 Sup. Gt. Bep. 531.

81 Jenison y. Bedfield, 149 Gal. 500,
87 Pac. 62.

32 Ante, sec. 429.

§ 431 IRRIGATION DISTRICTS. 651

parent as not to require further discussion he^e. Such a district
holds all property acquired by it solely in trust for such ultimate
purpose, and can divert it to no other use. (See sec. 29 of the Act
of 1897; Stats. 1897, p. 263.) It has to do solely with the irriga-
tion of lands within the district, and cannot appropriate water to
any other purpose. The right of a landowner of the district to the
use of the water acquired by the district is a right to be exercised
in consonance with and in furtherance of such ultimate purpose,
viz., for the improvement by irrigation of lands within the dis-
trict, and in no other way. His right is always in subordination
to the ultimate purpose of the trust. So far as he proposes to use
the water for the irrigation of lands within the district, he is pro-
posing to use it in furtherance of the purpose of the trust, and
is entitled to have distributed to him for that purpose such pro-
portion as his assessment entitled him to.^ To this extent only
can he be held to be the owner of any share or portion of the water,
except that, by virtue of the proviso of section 18,^ he may assign
the right to the whole or aliy portion of the share to which he is
entitled. This does not mean, however, that he may make an ef-
fectual transfer of his share, free from the trust by which it is en-
cumbered. It still remains subject to that trust, and therefore
can be used only for the irrigation of lands within the district, and
the irrigation district has no authority to distribute it for any
other purpose. The right of assignment conferred by the act
on a landowner is limited by the whole policy of the statute to an
assignment for irrigation within the limits of the district. We do
not understand the contrary to have been held in Board of Direc-
tors v. Tregea. " ^

§ 431. Colorado.— The statute ^ is set forth in fuU abstract
in Anderson v. Grand Valley Irr. Dist.*' The court relied upon
the California and Federal cases and held the apt constitutional,
saying: ''It seems to us that all of the objections urged upon this
hearing under the general head of 'due process of law,' so far, at
least, as they affect the appellant, or are involved in, or bear upon,
the issues raised in this special proceeding, have been met and suf-

33 Citing see. 18, Act of 1897, Stats. 36 Stats. 1901, p. 87 ; 1903, p. 265 ;
1897, p. 259. 3 M. A. S., 1905 .ed., sec. 2309a et

34 Citing Stats. 1897, p. 259. seq., Am. 1907, p. 448.

35 88 CaJ. 334, 353, 26 Pac. 237. 37 35 Colo. 525, 85 Pac. 313.

652

DISTRIBUTION OF WATER.

§ 431

ficiently answered » in the foregoing decisions, and to repeat the
argument of the opinions would be a work of supererogation. ' ' The
action of the Board of Directors in excluding land from the district
in organizing it may be examined in court for abuse of discretion
without proof of fraud or bad faith.^ The act is held constitu-
tional»

Idako.^ — The statute is held constitutional.'** Elections, surveys,
and similar proceedings are required.^ A special statute concerns
the exercise of the power of eminent domain by irrigation dis-
tricts.^ An irrigation district, it is held, may supply outside
lands."*^*

Kansas*^ — The statute is given in the note.

Montana, — The first act was passed in 1907.^'

Nebraska,^ — The exclusion of land may be .tested by a suit in
equity.*''

Nevada.^ — The statute is given in the note.

OregonA^ — The statute is constitutional.®^

TexasJ^^ — The statute is given in the note.

Utah,^ — The first decision under the act is Harris v. Tarbet.^
The act was repealed, having accomplished no results.^

38 Ahern v. Board of Directors
(Colo.), 89 Pac. 963.

38 Ibid,

40 Stats. 1899, p. 408; Stats. 1903,
p. 150, Am> 1907, p. 484.

41 Nampa etc. Dist. v. Boise, 11
Idaho, 474, 83 Pac. 499 ; Settlers ' Irr.
Dist. V. Settlers' Canal Co. (Idaho),
94 Pac. 829.

42 Pioneer Irr. Dist. v. Campbell,
10 Idaho, 159, 77 Pac. 328.

43 Stats. 1907, p. 221.

48a Settlers' Irr. Dist. v. Settlers'
Canal Co. (Idaho), 94 Pac. 829.

44 Qen. Stats. 1899, sees. 3575-3598;
Oen. Stats. 1901, sec. 3683 et seq.

45 1907, p. 136.

46 Statute, Comp. Stats. 1903, sec.
6476 et seq.. Am. 1905, p. 649, cc. 165,
166; Board of Directors v. Collins, 46
Neb. 411, 64 N. W. 1086; Andrews

V. Lillian Irr. Dist., 66 Neb. 458,
92 N. W. 612, 97 N. W. 336; Baltes
V. Farmers' Irr. Dist., 60 Neb. 310,
83 N. W. 83. See, also. Farmers' Irr.
Dist. V. Frank, 72 Neb. 136, 100 N.
VV. 286.

47 Andrews v. Lillian Irr. Dist., 66
Neb. 458, 92 N. W. 612, 97 N. W. 336.

48 Comp. Laws, 1900, sees. 324-423.
40 Statute, Bellinger knd Cotton's

Codes, sec. 4700 et seq.

50 Little Walla Walla Irr. Dist. v.
Preston, 46 Or. 5, 78 Pac. 982, sem-
ble.

51 Statute, Sayles' Civ. Stats., Supp.
1906, p. 269.

52 Statute, 1888, p. 127; Rer. Stats.
1898, sec. 1287 et seq.

53 19 Utah, 328, 57 Pac. 33.

54 Bulletin, 124, IT. S. Dept. Agric,
p. 31. See Stats. 1905, e. 1081, sec.
71.

9 432

IRRIGATION DISTRICTS.

(53

Wiishington,^ — The act is held constitutional.** The organiza-
tion and validity of bonds cannot be collaterally attacked." The
bonds are negotiable.^ In populous districts a majority is not
needed to institute the organization ; but where less than fifty sign
the petition, it must appear that the less number is a majority.^
The validity of the organization of one district has been attacked
in the supreme court four times and upheld each time.^

Wyoming. — The system is introduced into Wyoming by an act of
1907.«

§ 432. The writer was informed by a reliable source at the
time of the first edition of f his book, about three years ago, that out
of a large number of irrigation districts organized in California,
only three then survived, and that the scheme was regarded as a
failure. The repeal of the law in Utah was because nothing has been
accomplished under it. The explanation given is that it allows too
heavy an indebtedness to be placed upon lands by men inexperi-
enced in large affairs. A list of large canals in California ^ gives
seventy large canals belonging to companies, and only two operated
by irrigation districts (Modesto and Turlock districts, which co-
operate from the same stream — the Tuolumne River — and are prac-
tically one district).

65 statute, Ballinger's Code, see.
4166 et seq.; Pierce's Codes (1905),
sees. 5736, 5881 et seq.

60 Board of Directors v. Peterson, 4«
Wash. 147, 29 Pac. 995; Kinkade v.
Witherope, 29 Wash. 10, 69 Pac. 399.

07 Purdin ▼. Washington etc. Assn.,
41 Wash. 395, 83 Pac. 773.

58 Kinkade v. Witherope, 29 Wash.
10, 69 Pac. 399.

59 Bothsohild Bros. y. Bollinger, 32
Wash. 307, 73 Pac. 367.

00 Board of Directors v. Peterson,
4 Wash. 147, 29 Pac. 995; State ▼.
Brown, 19 Wash. 383, 53 Pac. 548;
and Kinkade v. Witherop, 29 Wash.
10, 69 Pac. 399; Rothschild Bros. y.
RolUnger, 32 Wash. 307, 73 Pac. 367.

«i Stats. 1907, p. 103.

82 Published in "Water and For-
est'' for October, 1907, compiled by
Prof. Samuel Fortier.

654 DISTRIBUTION OF WATEB. . $$ 433, 434

CHAPTER V.

NATIONAL IRRIGATION.

§ 433. Sources of information.

§ 434. Withdrawal of lands.

5 435. Water users associations.

§ 436. Articles of incorporation and by-laws.

§ 437. Stock subscriptions and certificates.

§ 438. Assessments.

9 439. Private holdings — Excess lands.

$ 440. Contract with Secretary of Interior.

9 441. Completion of organization.

§ 442. Water right applications.

•

§ 433. The following information is taken, with but few
changes, from circulars issued by the Department of the Interior
and the Reclsimation Service, pursuant to the National Reclamation
Act of June 17, 1902, 32 Stats, at Large, p. 388.^

§ 434. Withdrawal of Lands.— The withdrawal of lands under
the provisions of the Reclamation Act of June 17, 1902,* is prin-
cipally for the purpose of making the extensive surveys and careful
engineering investigations necessai^r to determine the feasibiUty of
any particular irrigation project. Even if the project is feasible,
only- a portion of the lands withdrawn will be irrigated. The mere
fact that surveys are in progress is no indication whatever that the
works will be built. Until the surveys hate been completed, it will
be impossible to state how much water will be available, what lands
will be watered, or Whether the cost will be too great to justify the
undertaking.

The fourth section of said act provides that the Secretary of the
Interior ** shall give public notice of the lands irrigable under such
project, and limit of area per entry, which limit shall represent the
acreage which, in the opinion of the Secretary, may be reasonably
rf»quired for the support of a family upon the lands in question ;

1 See, also, gupra, sec. 29.

2 32 Stats, at Large, p. 388.

§ 434 . NATIONAL IRRIGATION. 655

also of the charges which shall be made per acre upon the said en-
tries and upon lands in private ownership which may be irrigated
by the waters of the said irrigation project, and the number of an-
nual installments, not exceeding ten, in which such charges shall be
paid and the time when such payments shall commence." Until
this public notice has been issued by the Secretary of the Interior,
it will be impossible to give information concerning any particular
tract or any of the details required by the public notice.

Homestead entries may be made for the lands withdrawn as ir-
rigable under this act in accordance with the general laws and reg-
ulations relating to this class of entries. All the public lands under
an irrigation project will be divided into farm units containing
such area of irrigable lands as, in, the opinion of the Secretary of
the Interior, will be necessary for the support of a family. These
areaA may vary in any one project from forty acres to one hundred
and sixty acres, in accordance with the character of the soil and
the relation of the lands to the irrigation system. Each farm unit
will contain as nearly as possible the same average amount of ir-
rigable land suitably situated for irrigation, and, if necessary, for
drainage. The entries are not subject to the commutation provi-
sions of the homestead laws. Actual and continuous residence on
the land is required, in accordance with the homestead laws.

The entryman will be required to take water from the govern-
ment irrigation system and to pay in annual installments, not ex-
ceeding ten, the proportionate amount charged against the land in-
eluded in his entry. Before being entitled to a patent for the land,
the entryman must pay the- entire charges for the water, and must
show that he has reclaimed at least one-half the total irrigable area
of his entry for agricultural purposes. A failure to make any two
payments when due shall render the entry subject to cancellation,
with the forfeiture of all rights under the act, as well as all money
paid thereon.

Until the construction of the irrigation system has advanced to
such an extent that water can be furnished for the irrigation of the
lands, it will be difficult, if not impossible, to make a living upon
them; but those filing wiU not, on that account, be excused from
residing thereon, the homestead laws requiring that actual bona fide
residence be established within six months from the date of the filing
of the applicationSy and continuously maintained. Failure to

696 DISTSIBUTIOX OF WATEB. i 435

comply in good faith with the pnnrisioDS of the law conconiiig res-
deuce will render the entry snbjeet to eanedlation.

No speeifie rulings hare been made emceming the modifieatioD
of the homestead laws as applicable to entries nnder the Redamation
Aet. Except where modified by the terms of this act the entries
will be made in accordance with the general mlings eonceming the
homestead laws. Information concerning them can be obtained
from the circulars issued by the General Land Offiee.

$ 436. Water Users Aaodatiras.— Under seetiims 5 and 10
of the Reclamation Act, the Secretary of the Interior is authorized
to make necessary rules and regulations for supplying water to
lands in private ownership, and pursuant thereto the Reclamation
Service requires that as soon as the engineering, examinations and
surveys have proceeded to the point where the feasibility of the
goremment project from a physical standpoint is assured, an or-
ganization shall be effected by private landowners in the vicinity,
which organizations are called ^^ water users associations," and muse
be organized under the forms and method prescribed by the Recla-
mation Service.

These water users associations organized under the geAeral power
of the Secretary of the Interior to prescribe rules and regulations
are not the specific organization mentioned in section 6 of the Rec-
lamation Aet. That section provides that when the major portion
of the irrigated laAd has fully paid up its share of the cost of the
works (it being the intention of the act that ultimately the cost of
the irrigation projects shall be repaid to the United States by the
water users), then the control of the works shall pass from the
United States to the water users themselves ''under such form of
organization .... as may be acceptable to the Secretary of the
Interior." As yet, no project is so far advanced that the time for
such final organization has arrived, and the ''water users aasocia-
tions" now being organized are not regarded by the Secretary of
the Interior as being specifically the organization mentigned in
section 6 of the act. But the aim has been to make the present as-
sociations readily adaptable to the duties required in section 6,
to avoid, so far as possible, fundamental changes when the time ar-
rives for tusning over the irrigation works to the irrigators' final
organization.

§ 436 NATIONAL IBBIGATION. 657

The procedure follows local state law. Some States have passed
special statutes for their organization.^

§ 436. Articles of Incorporation and By-laws. — ^A committee
should be appointed by the people in the vicinity of any project
(prieferably at a mass meeting) to take the preliminary steps.
Articles of incorporation of the water users association and by-
laws should be drawn up, forms for which are issued by the
Reclamation Service. The oflBcial form must be strictly followed
in all provisions relating to the adjustment of water rights, regula-
tion and distribution of water, appurtenance of water to the land,
and liens on the land for charges of construction work.

The articles of incorporation are to contain the provisions cus-
tomarily used under the local law to constitute a corporation. The
by-laws. proposed for the organization are divided into two parts;
article I contains the essential provisions required by the conditions
of the Reclamation Act, which are to be subject to modification or
amendment only with the approval of the Secretary of the Interior.
The other articles provide for the government of the association
and the conduct of its business and will be subject to modification as
may be necessary. Additional articles will be adopted from time
to time as they may be required. Those matters in the articles and
by-laws which relate to the government of the association, the num-
ber of. its ofScers, and the conduct of its business may be modified
as found necessary on account of local. conditions or the local laws
or decisions of the courts.

Inasmuch as the contract which the association will make with
the Secretary of the Interior before the construction of the project
begins requires that no change shall be made in the provisions of its
articles of incorporation and by-laws relating to water rights, ap-
purtenance, liens, etc., without the consent of the Secretary of the
Interior, it is necessary to incorporate in the articles and by-laws
a similar provision concerning change, unless the local laws do not
permit. In such case, thesie features must be left to be fixed by the
contract between the water users association and the Secretary of
the Interior.

When the articles of incorporation and by-laws have been formu-
lated to the satisfaction of the committee, a copy should be for*

s See supra, sec. 29.
Water Bighu— 42

658 DISTBIBUTION OF WATER. S 437

warded to the chief engineer of the Reclamation Service for ex-
amination, in order that they may be modified, if necessary, so that
they will conform to the requirements of the Secretary of the In-
terior, and that the committee may receive the benefit of the ex-
perience of other localities. The committee will be immediately
informed of any changes deemed important.

§ 437. Stock Subscriptions and Oertiflcates.— After the arti-
cles of incorporation have been filed with the proper State ofScer,
one or more mass meetings should be called, as may be necessary, to
bring together all the people interested. At these meetings the
articles and by-laws should be fully discussed and subscriptions to
the stock obtained from those present. Before construction work
can be undertaken it is necessary to obtain a sufficient number
of subscriptions for lands in private ownership to insure financial
success. The subscriptions should provide for acknowledgment by
both husband and wife, even in States where there is no right of
dower, and where in ordinary conveyances the wife is not required
to join, in order that her signature may be obtained in case a home-
stead exemption has been declared. If any land subscribed is
subject to a homestead exemption, the subscription to stock must
be executed in such manner as will permit the lien therein provided
to attach to the land. The subscription should not be accepted
unless it includes all the land under the project owned by the sub-
scriber. A careful soil examination of the land will be made, and
all shares representing non-irrigable land will be eliminated.
Ample provision is made in the by-laws for refunding any assess-
ments collected on shares which are afterward canceled.

The subscriptions must be recorded, in order to bind the lands
subscribed for in the hands of a subsequent transferee of the land.
In most of the States legislation has been enacted to facilitate this
recording at a minimum expense.

The association will issue certificates of stock when the Secretary
of the Interior has finally determined the extent of land irrigable
from the project. These certificates of stock should recite the mat-
ters required by the articles of incorporation and the by-laws, and
should also contain a statement of the procedure adopted to enforce
the lien against the land for which the subscription was made.

When it has been decided to begin construction of the project
the next step to be taken by the water users association is to close

§§ 438, 439 . NATIONAL IRRIGATION. 659

its subscription books. It will be necessary for the association to
give public notice that after a certain date no further subscriptions
will be accepted, except at the designation of the Secretary of the
Interior, and pursuant to the conditions in the articles and by-laws.

§ 438. Assessments — It is the duty of the water users asso-
ciation to levy calls and assessments as may be found necessary for
meeting the current expenses of the association, and also for the
collection of the amounts due on the shares of stock as mav be re-
quired by the United States in connection with water right applica-
tions hereafter mentioned. In order that the association may carry
on its business, small assessments must be levied during the early
stages of its organization, usually five to ten cents per acre from
time to time to meet current expenses.

If the local law permits, there is no objection to a by-law making
all new subscribers subject to all assessments levied prior to their
subscription, and providing also for the levy of fines upon de-
linquents and admission fees for those subscribing after the books
are closed.

The by-laws provide that assessments are a lien upon the lands
and shares of the stockholders, and prescribe the method of en-
forcing the same, and the association is expected to take action,
when necessary, in pursuance of the requirements.

§ 439. Private Holdings — ^Excess Lands. — Subscribers who
own lands in excess of the area for which water will be furnished
to lands in private ownership should, for convenience in trans-
ferring stock, make one subscription for the tract which they pro-
pose to hold under the project and one or more other subscriptions
for their other holdings, conforming to the subdivisions in which
it is proposed to sell them. Those who own lands under the project
in excess of one hundred and sixty -acres are required to dispose
of the excess so that at the time when the water is furnished no
one person holds more than one hundred and sixty acres of irrigable
land. They may, under some projects, be required to reduce their
holdings to such less area as may be fixed by the Secretary of the
Interior.

In order to insure this adjustment it will be necessary for such
persons to execute a contract with the water users association pro-
viding for the subdivision of their lands. In general terms, this

660 DISTRIBUTION OF WATER. § 440

contract is a transfer of the land in trust to the water users associa-
tion with power in the association to sell the same at public auc-
tion in case it has not been sold to parties qualified to apply for a
water right under the provisions of the Reclamation Act, when
water is ready for delivery by the United States. A copy of the
form of contract used for this purpose can be obtained from the
Reclamation Service.

It is not intended that there shall be any restriction on transfers
by the owners of these lands through the water users association,
even though the purchaser may not himself be qualified to apply
for a water right under the Reclamation Act, subject, however, to
the condition that at the time the United States is ready to furnish
water the lands shall be in possession of parties qualified to apply
for and perfect a water right. A form of deed is given by the
Reclamation Service for use in transferring the land and provid-
ing for continuance of the trust notwithstanding such transfer.
Under the 'terms of the trust deed the conditions of the trust remain
in effect until the acceptance of an application for water right duly
made by a qualified holder of the land. When the trust has been
fulfilled and after payment of all costs and expenses of the trust,
the association may execute a quitclaim deed in favor of a qualified
holder or holders. All deeds should be recorded.

§ 440. Contract with Secretary of the Interior.— After dosing

suI)scription-books, a contract is executed between the association
and the Secretary of the Interior, in a form furnished by the
Reclamation Service, which is adaptable to any project with a few
changes, and which must be executed before construction work
will begin. Under this contract the association guarantees pay-
ment to the government of costs of construction, operation and
maintenance, levied against the association's members, being a large
sum annually. The incurring of this obligation by the associa-
tion requires a vote of the stockholders; and proper by-laws must
be adopted for regulating such stockholders' meeting, and proper
notice of the meeting given, as the articles and by-laws provide.

The form of contract furnished by the Reclamation Service has
received the approval of the Secretary of the Interior, and no
changes should be made, as they might involve a refusal on the part
of the Secretary to execute the same, and thus make necessary
another stockholders' meeting and perhaps delay the beginning of

§ 441 NATIONAL IRRIGATION. 651

•

construction. Before the election to authorize the contract is an-
nounced, a copy of the proposed form of contract should be for-
warded to the chief engineer, in order that it may be carefully
examined and the association advised as to its compliance with the
requirements of the Secretary of the Interior.

After the meeting has been held and the contract has been au-
thorized by the stockholders, the same should be executed in dupli-
cate by the proper of&cers of the association, and there should be
attached to each a copy of the articles of incorporation and by-laws
both duly certified under seal of the corporation. There should
also be copies of the notices to and of the proceedings by the stock-
holders, authorizing the execution of the contract, and of the pro-
ceedings by the board of directors authorizing the signature of 'the
contract by the appropriate officers. The Secretary of the asso-
ciation should certify, under corporate seal, that the association
is duly organized and that a certificate of incorporation has been
issued to the association by the Secretary of State. In other words,
the papers should contain complete evidence that the contract has
been duly authorized and executed in full compliance with the
articles of incorporation and by-laws.

The contract, articles of incorporation, by-laws and evidence of
the procedure authorizing the contract should be prepared in dupli-
cate as two separate documents, both of which should be executed
under the seal of the corporation and forwarded through the
project engineer to the chief engineer, who will transmit the same
to the Secretary of the Interior for execution, if found in proper
form. After the Secretary of the Interior has signed them, one of
the executed copies will be returned to the water users association.
The contract should be recorded.

§ 441. Completion of Organization. — The execution of the con-
tract between the water users association and the Secretary of
the Interior may be regarded as the completion of the organization
of the water users association. At that time it becomes, as it were,
an integral part of the project and directly associated with the
Gk>vemment in carrying out the details thereof, and in the acquisi-
tion of land and the condemnation of rights and property which
may be required in connection with projects. The execution of
this contract formally fixes the relation of the association to the
government as the representative of the water users and as the

662

DISTRIBUTION OF WATER.

9 442

medium of communication between the water users and the govern-
ment.

§ 442. Water Bight Applications.— The Secretary of the In-
terior has approved two forms of water right applications, one for
homesteaders and one for private landowners. These forms pro-
vide that all applicants must be members of the association or-
ganized under the project before their applications will be ac-
cepted. In accordance with the agreement in the stock subscription,
the members of the association must promptly apply for water
rights for the lands represented by their shares.

Users of water under the Carey act may join a water users as-
sociation and be entitled to receive additional water.^

4 35 Land Dec. 222.

WATEB USERS ASSOCIATIONS. 663

CHAPTER VI.

WATER USERS ASSOCIATIONS (CONTINUED). ^

B^ Mr. MORRIS BIEN.

Section 6 of the Reclamation Act of June 17, 1902,^ provides
that when payments required by the Act have been made for the
major portion of the lands irrigated in any project then the man-
agement and operation of such works shall pass to the owners of
the lands irrigated thereby, to be maintained at their expense,
under such form of organization, and under such rules and regu-
lations as may be acceptable to the Secretary of the Interior. This
provision of the law contemplates the organization of the water
users so that they may maintain and operate the irrigation works
turned over to them by the United States.

Neither this section nor any other provision of the law author-
izes the Secretary of the Interior to transfer the title of these works
to the water users associations. The final proviso of section 6 ex-
plicitly states thdt the management and operation of the reser-
voirs and the works necessary for their protection and operation
shall remain in the (Jovemment until otherwise provided by Con-
gress. While it might be inferred from this language that the title
to the diversion and distribution works is to be transferred, the
Act does not authorize it. This possible conception is due to the
fact that the various drafts of the bill provided for the retaining
of title by the United States, and in the final adjustment of the
language, this proviso which was intended to qualify language
which had been stricken out of the bill was left in its present
form.

The Reclamation Act leaves with the Secretary of the Interior
a large discretion as to administrative details. When it was found

1 Mr. Morris Bien, Supervising En- eulars from which the preceding chap-

gineer of the United States Reelama- ter was taken. The field is an en-

tion Service, has kindly prepared tirely new one, in which Mr. Bien oe-

specially for this book, the follow- cnpies a position of recognized au-

ing chapter npon Water Users As- thority.

sedations, treating of nnmerous mat- > 32 Stat. 388.
ters not contained in the official cir-

664 DISTRIBUTION OP WATER.

that several of the early projects taken up for construction con-
tained considerable proportions of land in private ownership and
involved complicated questions of water rights, it became neces-
sary to devise a form of co-operation by which the Secretary of the
Interior could deal with the landowners as a unit instead of being
required to deal with numerous individuals. It was natural, there-
fore, that the provisions of section 6 should furnish the su^estion
for a water users association to be incorporated at once as pre-
liminary to the organization contemplated by the law at a later
period.

The details of this question were thoroughly discussed during
a period of nearly a year by the water users in the vicinity of
Phoenix, Arizona, under the Salt River Project, and resulted in
the organization of a corporation named The Salt River Valley
Water Users Association.

The articles of incorporation were the outcome of a thorough
analysis and discussion of the much-involved water right conditions
in that valley. They represent a series of adjustments and com-
promises and harmonize many complications of land ownership and
water right claims. These articles of incorporation are set out in
full in the Second Annual Report of the Reclamation Service, pages
76-87, inclusive.

This plan was carefully reviewed by the officers of the Reclama-
tion Service, and finally received the sanction of the Secretary of
the Interior as representing the adopted form of dealing with pro-
jects in which there existed a considerable proportion of private
land involving water right claims. It is a form of regulation for
the tentative organization of the water users under reclamation
projects. Several corporations of this character were organized
on reclamation projects in the year 1903.

It was soon found, however, that the plan adopted as suitable in
Arizona and in several of the States could not be followed in all
cases because of the varying features of the State laws governing
corporations. Accordingly, the ReclaUiation Service remodeled
this plan and divided the articles of incorporation as previously
outlined into two parts. Th^ first part is the articles of incor-
poration following the usual form of the various States and Terri-
tories, containing only the features required by law to be specified
in such articles. The second part constitutes the by-laws and pre-

WATER USERS ASSOCIATIONS. 665

scribes the internal administration and the relations of the stock-
holders to each other and to the Government in the matter of
water rights and the other features required in order to comply
with the provisions of the Federal Reclamation Act.

The first of these by-laws contains those features which are es-
sential, in order to conform to the requirements of the Federal
Statute. This article contains a form of stock subscription which
is essentially a contract between the sul^scriber and the corpora-
tion, by which the former agrees to the necessary restrictions and
conditions flowing from the relations of the individuals and the
corporation to the United States as required by the Reclamation
Act. This article is by agreement not subject to change without
consent of the Secretary of the Interior. The remainder of the by-
laws concern principally the government of the corporation^ and
are similar to other by-laws of corporations.

The form of articles of incorporation and the first article of the
by-laws are as follows:

ABTICLBS OF INCORPORATION OF THE WATER

USERS ASSOCIATION.

Know ail men by these articles of incorporation:

That we, the undersigned, have associated ourselves together under the laws
of the of as a body corporate.

A&TICLE I.

The name of the corporation shall be and is Water Users Asso-
ciation.

Abticlb II.

The names of the incorporators are : , but others may become

members of this association by subscribing for the stock of this association or
by the transfer of stock to them in the regular course of the administration of
the affairs of the association.

Abugle m.

The principal place of transacting the business of the aasociation shall be at
, in the county of , in the of

Abticlb IV.

The purposes for virhich this association is organized and the general nature
of the business to be transacted are:

To acquire, furnish, provide for, and distribute to the lands of the share-
holders of the association, an adequate supply of water for the irrigation
thereof; to divert, store, develop, pump, carry and distribute water for irriga-
tion and all other beneficial usee, deriving the same from aU available sdurces
of supply; to construct, purchase, lease, condemn, or acquire in any manner

666 DISTRIBUTION OP WATEB.

whatsoever, and to own, use, sell, transfer, convey, control, maintain and oper-
ate any irrigation works, structures, telephone systems, electric or other power
plants and transmission lines, and property both real and personal of eveiy
kind whatsoever, necessary to or appropriate for the accomplishment of any of
the purposes of this organization; to generate, create, transmit, use, and sell
power and electrical energy; to act as trustee, agent, or attorney for the sale,
disposal, and transfer of lands, in order to f^ilitate the disposal of such
lands, or any part thereof, to persons qualified to perfect rights to the use
of water under the laws of the United States applicable thereto, and the rules
and regulations established thereunder; to incur indebtedness, floating or
bonded, and to secure the same by mortgage, deed of trust, pledge, or other-
wise; to acquire, hold, and dispose of stock in other corporations, domestic or
foreign; to have and exercise all the powers and to perform any and all acts
necessary to or appropriate for the accomplishment of any ojie or more of the
said purposes or anything incident thereto, or which shaU at any time appear
conducive or expedient for the protection or benefit of the association or its
shareholders, and to that end enter into any contract, agreement, or other
arrangement with the proper representative of the United States, or any indi-
vidual, association of individuals, or corporation, for the accomplishment of any
of the aforesaid purposes, by means of the construction, acquisition, or control
of appropriate works or structures, or in any other manner whatsoever; to
enter into any agreement with the proper representatives of the United States
with reference to the eoUection and payment of any and all charges made under
the Federal statutes, for the works providing water for the lands of its share-
holders, and to comply with the provisions of any Federal statutes applicable
to the work done by the United States in connection with such system of water
supply, and any rules and regulations established thereunder.

Abtiglb V.

The capital stock of the association shall be $ divided into

shares, of the par value of $ each, and said stock shall be assessable.

Abtiole VL
This corporation shall endure for the term of years.

Abtiglv VII.

Sbction 1. The exercise of the corporate powers of this association and the
management of its affairs shall be vested in seven 3 directors, elected to serve
one year; and a president and vice-president, each elected to serve two years.
The president and vice-president shall be ex-officio members of the board of
directors. The board sluall annually elect a secretary and a treasurer.

Skg. 2. Until the election in 190 and the qualification of those then

elected, the following shall be the president, vice-president, and directors of this
association :

Abticlb VIIL

The individual property of the shareholders shall be exempt from liability
for the corporate indebtedness of this association, except as provided herein or
in the by-laws.

3 If the president and vice-presi- tors should be reduced; three di-

dent are elected at large, this makes rectors, with the president and vice-

a board of nine, which would be president, will make a satisfactory

too large, except for a project con- boards for a project of 60,000 to

taining at least 200,000 acres; for 100,000 acres,
pmaller projects the number of direc-

WATER USERS ASSOCIATIONS. 667

ASTICLE IX.

The corporate indebtednesB shall not exceed two-thirds of the amount of the
capital dtock.

Abticls XA

The amount of the capital stock of this corporation that has been actually
subscribed, and the number of shares subscribed by each subscriber, and the
par value thereof, are as follows:

iIahi of subscriber. number of sh.\re8. par value.

BY-LAWS OF THE WATER USERS ASSOCIATION.

[Adopted ]

Article I.

Section 1. The territory within which the lands to be irrigated are situated,

to be known as the irrigation district, includes all such lands

within counties, State of as may be included in the

reclamation project of the United States known as the project,

as finally approved by the Secretary of the Interior.

Sec. 2. Only those who are owners of lands, or occupants of public lands
having initiated a right to acquire the same, within the area described in
section 1, or within such extensions thereof as may be duly made, shall be
qualified to own the shares of this association. One share and no more shall
be aUotted for each acre of land, or fraction thereof.

Sec. 3. Each share and the holder thereof shall be subject to the conditions
of the form of stock subscription and contract hereinafter prescribed, and shall
execute such form for the stock subscribed by him, and no subscriptions for
stock shall be taken or stock issued unless the applicant has subscribed to said
form of stock subscription and contract, which shall be signed, executed and
acknowledged by the applicant in the same manner as required for the execu-
tion and acknowledgment of deeds for the conveyance of real property. Said
form of stock subscription and contract shall be as follows:

stock subscription and contract.

Know ail men by these presents, That I, , do hereby subscribe

for and agree to take shares of the capital stock of the

Water Users Association, a corporation duly organized under the laws of the

State [or Territory] of , and in conformity with the articles of

incorporation and by-laws of said association and in consideration of the bene-
fits to be received therefrom, I hereby covenant and agree as follows:

1. The said shares of stock and all rights and interests represented thereby
or existing or accruing by reason thereof, or incident thereto, are to be insep-
arably appurtenant to the following described real estate, that is to say:

2. The undersigned hereby agrees that the right to any water heretofore
appropriated by him, or his pr^ecessors in interest, for the irrigation of the
lands above described or customarily used thereon, shall become appurtenant
to such lands and be and remain incident to the ownership of the above shares
appurtenant to such lands. There shall be further incident to the ownership
of such shares, the right to have such water delivered to the owner thereof

4 The articles should contain such additional provisions as may be made
necessary by State or Territorial law.

668 DISTRIBUTION OF WATER.

•

by the association for the irrigation of said lands, as the association shall
from time to time acquire or control means for that purpose: Provided, That
the whole amount of water actually delivered to such lands from all sources
shall not exceed the amount necessary for the proper cultivation thereof.

3. It is agreed and understood that the records of the association, as well
as the certificftte or other evidence of ownership of the shares of stock in
the association, when issued, shall contain a description of the lands to be irri-
gated, as above described, and to which the aforesaid rights and shares shall
be perpetually appurtenant; and all rights, whatever their source or whatever
their manner of acquisition, to the use of water for the irrigation of said
lands, shall hereafter be forever inseparably appurtenant thereto, together
with the said shares of stock and all rights and interests represented thereby
or existing or accruing by reason thereof, unless /such rights shall become for-
feited under the provisions of this contract, or of the by-laws of this associa-
tion, or by operation of law, or by the voluntary abandonment thereof by deed,
grant, or other instrument, or by nonuser for the term prescribed by law; but
no such abandonment shall be for the benefit of any person designated by the
undersigned or his successor, directly or indirectly, or to his use, nor confer
any right whatsoever upon the holder of any grant, release, waiver, or declara-
tion of abandonment of any kind; Provided, however, That if for any reason
it should at any time become impracticable to beneficially use water for the
irrigation of the lands to which the right to the use of the water is appur-
tenant, the said right may be severed from said land and simultaneously trans-
ferred and attached to other lands to which shares of -stock in this association
are or shall thereby be made appurtenant, if a request for leave to transfer,
showing the necessity therefor, shall have first been allowed by a twp-thirds
vote of the board of directors at a regular meeting and approved by the Sec-
retary of the Interior.

4. Every transfer of the title to said lands to which the said rights and
shares are appurtenant, whether by grant or' operation of law (except where
the land may be subjected by grant, or involuntarily under any law, to an ease-
ment, the exercise of which does not interfere with the cultivation of the soil
by the servient owner), shall operate, whether it be so expressed therein or
not, as a transfer to the grantee or successor in title of all rights to the use*
of vTater for the irrigation of said lands, also all rights arising from or in-
cident to Ihe ownership of such shares as well as the shares themselves, and
apon presentation to this association of proof of any such transfer of land
the proper oi&cer shall transfer such shares of stock upon its books to the
Fupcersor in title to faid lands.

5. Any transfer or attempted transfer of any of the above shares of this
associatioii made or suffered by the owner thereof, unless simultaneously a
transfer of the land to which they are appurtenant is made or suffered to or in
favor of the same party, shall be of no force or effect for any purpose, and
shall confer no rights of any kind whatsoever on the person or persons to whom
such transfer may have been attempted to be made.

6. The undersigned or his transferee agrees to make prompt application
to the proper authorities of the United States for a water right for the land
represented by his shares, and duly proceed to the perfection thereof, in full
compliance with the law applicable thereto and the rules and regulations estab-
lished in pursuance thereof, as soon aq official announcement shall be made
that water for such lands is available from the works constructed, owned, or
controlled by the United States.

7. The undersigned shaU, as prescribed in this contract, make application
to the proper representative of the United States for a water right, at a rate
not to exceed one aere for each share. Upon propet proof to the association
that such application has been accepted and that he has complied with all the
requirements in relation thereto, such subscriber shall be deemed to have pai<^

WATER USERS ASSOCIATIONS. 669

on his stock the amount then paid to or for the use of the United States for
such rights.

8. Calls and assessments shall be made and levied from time to time for
the collection of the amounts due on the shares of the stock of the association,
in pursuance of the requirements of the United States in connection with such
water-right applications; and when all payments required for such rights shall
have been made, and when proper evidence of the perfection of such water
right has been issued, his stock shall be deemed and held to have been fully
paid up, and until fully paid he shall be liable therefor; and the payments due
thereon in pursuance of assessments and calls duly made by the association
shall be a lien upon such lands and shares, and the said lien shall be enforced
by the association by foreclosure and sale of said stock and lands or so much
thereof as may be necessary, in the manner provided by law for the foreclosure
of mortgages, and the purchaser -at such sale shall be entitled to the benefit
of* all payments on the water right appurtenant to the land purchased, and
shall take said lands subject to the obligations and conditions herein provided;
but nothing herein shall be construed as permitting any redemption of such
stock and lands except as provided in the by-laws.

9. Assessments may be made from time to time as required for the opera-
tion, maintenance, repair, renewal, replacement, improvement, enlargement, or
extension of the works owned, controlled, or to be maintained by the associa-
tion, and for the construction, acquisition, or control of any works, property,
or rights required in connection with the business of the association and for
the fulfillment of any obligation undertaken by it, or for the carrying out of
any of its purposes.

10. It is understood and agreed that expenditures for purposes that are of
benefit to a part only of the shareholders may be especially assessed against
such shareholders in proportion to such benefits.

11. Assessments shall become from time to time, as they are made and
levied, a lien on the said lands and shares of stock of the undersigned and his
transferee, and all rights and interests represented by said shares, and until
they are paid or otherwise discharged, shall be and remain a lien thereon.
The manner of enforcing said lien shall be by foreclosure and sale of the stock
and lands as herein provided for payments on capital stock.

12. It is expressly understood that business may be begun and that the sub-
scriber shall be liable for any assessments or calls made or levied after s

shares of the capital stock shall have been subscribed.

13. The undersigned furthermore grant to the association or to the United
States, as the case may be, over the lands described herein, as may be required
in connection with the works constructed or controlled by the association or
by the United States for the use and benefit of the stockholders, necessary
right of way for the construction, operation and maintenance of canals, tun-
nels and other water conduits, telephone and electric transmission lines, drains,
dikes and other works for irrigation, drainage or reclamation.

14. It is further understood tiiat no stockholder shall be entitled to more than
160 votes, and the benefit of any laws to the contrary is hereby expressly waived.

15. The undersigned furthermore agree to be bound by All the terms, condi-
tions, limitations, and provisions contained in the artlftles of incorporation and
by-laws of said Water Users Association, including aU amend-
ments thereto now existing or which may hereafter be duly adopted.

In toitness whereof, we have hereunto set our hands and seals, this .... day
of , 190

Sigiled in the presence of-r

[Signature of Wife.]

Witnesses.
6 Insert number of shares which it is known will be readily subscribed.

670 DISTRIBUTION OF WATEB.

State of

County of , — ss : «

On this .... day of , in the year nineteen hundred and ,

before me, , a notary public in and for the said county, person-
ally appeared , known to me to be the person whose name is sub-
scribed to the within instrument, and acknowledged to me that he executed the

same; and on this .... day of , 190. . . ., before me, the officer above

described, personally appeared , known to me to be the person

whose name is subscribed to the within instrument, described as a married
woman, and upon an examination without the hearing of her husband I made
her acquainted with the contents of the instrument, and thereupon she acknowl-
edged to me that she executed the same, and that she does not wish to re-
tract such execution.

In witness whereof I have hereunto set my hand and affixed my official seal
the day and year jn this certificate first above written.

[notabial seal.]

My commission expires Notary Public,

The above subscription and contract was accepted and approved by the

Water Users Association at a meeting of the board of directors

held on the .... day of , 190. . . .

Water Users Association,

By , President.

Attest :

8ecretary.^

And such stock subscription and contract shail become binding upon the
association only when approved and executed by the association.

Sec. 4. Any shares of stock which may be forfeited under the provisions
of the stock subscription and contract, as set forth in section 3 of Article I of
the by-laws, shall at once be canceled and shaU not, under any circumstances,
be renewed, revived, or reissued. Other stock in lieu thereof up to the limit
of the total number of shares authorized by the articles of incorporation may
be subscribed for and issued, subject to all the conditions of these by-laws, and
the articles of incorporation and to the approval of the Secretary of the In-
terior.

Sec. 5. The ownership of each share of stock of this association shall carry
as incident thereto a right to have water delivered to such shareholder by the
association for the irrigation of the lands to which such share is appurtenant.

Sec. 6. The amount of wafer to be delivered to such owner during any
irrigation season shall be that proportionate part of all the water available
for distribution by the association during that season as the number of shares
owned by him shall bear to the whole number of valid and subsisting shares
then outstanding, such water to be delivered to and upon said lands at such
times during that season lis may be needed for the proper irrigation thereof.

Sec. 7. The records of the association, and each and every certificate or
other evidence of ownership of the shares of stock in the association, when
issued, shall contain a description of the lands to be irrigated, and to which
the aforesaid rights and shares shall be perpetually appurtenant ; and all rights

6 Acknowledgment should be made 7 The stock subscription should
in form prescribed by State or Ter- have printed on the back a form for
ritorial law, and must be sufficient to notation by the proper county officer,
release any homestead exemptions, showing place, date, and time of re-
dower, or other rights. cording.

WATER USERS ASSOCIATIONS. 671

to the use of water for the irrigation of said lands^ whatever their source^ or
whatever their manner of acquisition, shall be forever inseparably appurtenant
thereto, together with the said shares of stock, and all rights and interests rep-
resented thereby or existing or accruing by reason thereof, unless such rights
shall become forfeited under the provisions of these by-laws, or by operation
of law, or by the voluntary abandonment thereof by deed, grant, or other in-
strument, or by nonuser for the term prescribed by law; but no such abandon-
ment shall be for the benefit of any person designated by such shareholder,
directly or indirectly, or to. his use, nor confer any right whatsoever upon the
holder of any grant, release, waiver^ or declaration of abandonment of any '
kind: Provided, however, That if for any reason it should at any time become
impracticable to beneficiaUy use water for the irrigation of the land to which
the right to the use of the water is appurtenant, the said right may be severed
from said land and simultaneously transferred and attached to other lands to
which shares of stock in this association are or shall thereby be made appur-
tenant, if a request for leave to transfer, showing the necessity therefor, shall
have first been allowed by a two-thirds vote of the board of directors at a regu-
lar meeting and approved by the Secretary of the Interior. AU the provisions
and agreements of this section shall be set forth in the aforesaid certificate
or other evidence of the ownership of shares of stock in the association, to-
gether with any other provisions and agreements- made necessary by the articles
of incorporation, or by-laws, and such certificate or other instrument shall be
signed, executed, and acknowledged by the president and secretary of the asso-
ciation, and the board of directors shall pass by-laws prescribing the form of
such certificate or other instrument, not inconsistent with the articles of in-
corporation or these by-laws.

Sec. 8. If it should be determined by the United States that the amount of
water available from the entire irrigation system as owned or controlled by it
and by the association shall be insufiicient to properly irrigate one acre of land
for each share of the capital stock, then no shares in excess thereof shall be
issued, and the number of shares shall be so reduced, by appropriate amend-
ment of the articles of incorporation, as not to exceed the number of acres
determined by the United States as irrigable from the entire available supply
of water.

Sec. 9. If, when such determination is made, the number of shares sub-
scribed shall be in excess of the number of acres so determined, an allotment of
shares shall be made to the subscribers equal to the number of acres irrigable,
giving preference to cultivated land. The surplus of shares so subscribed shall
thereupon be canceled and shall not be reissued. By-laws shall be adopted to
govern such allotment.

Sec. 10. If the number of acres of irrigable land or the cost of the works,
or both, as determined by the United States, shall exceed the number of shares
of the capital stock authorized, appropriate amendment of the articles of incor-
poration as to the number of shares, the par value thereof, and the capital stock
shall be made in compliance with the laws applicable thereto.

Sec. 1 1. Revenues necessary for the accomplishment of the purposes of this
association shall be raided by caU or assessment, from time to time as required,
upon and against the shareholders.

Sec. 12. The board of directors shall have power to make and enforce
necessary by-laws for fixing and enforcing the lien on the lands of the share-
holders, and for the making, levying, collecting, and enforcing of all assess-
ments.

Sec. 13. Nothing in the articles of incorporation and by-laws or in the fact
of becoming a member of this association shall be construed as affecting, or
intended to affect or in any way interfere with the vested rights of any person
to the prior use or delivery of any waters.

Sec. 14. The articles of incorporation or by-laws shall not be so amended
as to in any wise conflict with any Federal statutes or the rules and regulations

672 DIOTEIBUTION OP WATER.

established thereunder for the administration of water from any reserroir or
other works acquired, constructed, or controlled by the United States, and which
may be used for supplying water to the lands of the shareholders of this asso-
ciation.

Sec. 15. No provision of any by-law embraced in Article I of these by-
laws shall be amended or modified except with the approval of the Secretary of
the Interior.

The remainder of the general by-laws and much other mat^al
concerning this subject has been printed by the Reclamation Ser-
vice in a pamphlet entitled ''Organization of Water Users Asso-
ciations."

Many of the States affected by the Reclamation Act have passed
laws for the purpose of facilitating the operations of the Govern-
ment in carrying out the law! These statutes have covered several
different points.

Several States and Territories have relieved these water users
associations from the usual franchise taxes connected with incor-
poration, requiring instead a nominal fee. These are Colorado,
Idaho, Montana, New Mexico, Oklahoma, Oregon and Wash-
ington.®

Montana, New Mexico, North Dakota, Oklahoma, Oregon,
South Dakota and Washington have provided that upon the
filing of notice of intention of the United States to construct
a project, with a statement of the amount of water to be used, such
amount of water shall remain available for the use of the United
States in connection with the project for a certain time, usually
three years. Provision is made for confirmation of the right to
use the water upon the filing of the evidence that construction has
been authorized by the Secretary of the Interior .•

8 Colorado. — Seas. Laws 1905, e. • Montana. — Sess. Laws 1905, e. 44,

141, sec. 1, p. 360. sec. 1, p. 80.

Idaho. — Sess. Laws 1905, see. 3, p. New Mexico. — Sess. Laws 1907, e.

374. . 49, see. 40.

Montana. — Sess. Laws 1905, c. 66, North DaJcota. — Sess. Laws 1005, e.

p. 150. 34, see. 36, p. 54.

New Mexico. — Sess. Laws 1905, o. OJcHahoma. — Sess. Laws 1905, e. 21,

15, sec. 1, p. 43. sec. 26, p. 287.

Oklahoma. — Sess. Laws 1905, c. Oregon. — Sess. Laws 1905, e. 228,

21, sec. 48, p. 296. sec. 2, p. 401.

Oregon.— Sew. Laws 1907, c. 144, gavth Dakoia.—SeaB. Laws 1905, c

sec. 2, p. 287— Act refers only to 132, aec. 36, p. 209, and Sess. Laws

Umatilla Biver W^ater Users Assocla- 1997, c. 180, sec. 37, p. 384.

*^'^«»iiH7*(m.-Sess. Laws 1905, c. .J^^^^^lT^^A m"" ^^^' ^*

88, see. 7, p. 184. ®®' ^' ^' PP' ^^^ ^^ ^^^'

WATESt USEBS ASSOCIATIONS. 678

Colorado, Idaho^ Montana, Nevada, New Mexico, North Dakota,
Oklahoma, Oregon, South Dakota, Utah, and Washington have pro-
vided for the sale of State landa ineluded within reclamation pro-
jects 80 as to conform to the provisions of the Reclamation Act.^^

One important matter which it was necessary to adjust by means
of these articles of incorporation and by-laws was the disposition
of lands held in private ownership in excess of 160 acres.

The Reclamation Act provides in section 5 that ''No right to the
use of water for land in private ownership shall be sold for a tract
exceeding one hundred and sixty acres to any one landowner, and
no such sale shall be made to any landowner unless he be an actual
bona fide resident on said }and, or occupant thereof residing in the
neighborhood of said land."

In the construction of these projects the United States expends
large sums amounting in most cases to several million dollars, and
it was essential that there should be no danger of this investment
lying idle for a long period while awaiting the disposal of lands
in small blocks by those who hold more than one hundred and
sixty acres, or by those holding that amount or less who wer6 un-
willing to comply with the requirements of residence. There was
also to be considered the tendency to hold as large blocks as
possible for the great inerease in values that was inevitable.

To meet this condition it became necessary to have an assurance
that the lands would come into the hands of those who were quali-
fied to apply for a water right under the Reclamation Act as soon
as the Qovernment was ready to furnish the water.

It was anticipated by aU who had given the matter much thought
that land values would increase materially as soon as the Secretary
of the Interior had adopted a project and authorized construction ;
that these valuations would gradually increase as construction pro-

10 Colorado. — Sess. Laws 1905, c. Oklahoma. — Sess. L'aws 1905, c. 21,

184, sec. 22. see. 47, p. 295.

Idaho.— Sen. Laws 1905, see. 2, p. Oregon.'-^en. Laws, c. 228, see.

374. U, p. 405.

JConW--8ess. Laws 1905, e. 53, ^^^ DaJkoto.-Sess. Laws, 1905, c.

Nwada,-SeM. Laws 1905, c. 64, ^^?; **f- ^J' K^^^\^^ ,_

see. 2 p. 93. Utnth. — Sess. Laws 1905, e. 115, sec.

N&w i«ri<?o.— Sees. Laws 1907, c. 2, p. 177.

49, sec. 55. Washington. — Sess. Laws 1905, c.

North Dakota.r-^efsa. Laws 1905, o. 8S, see. 6, p. 183.
34, sec. 61, p. 59.

Wftter Rifhta— 48

674 DISTRIBUTION OF WATER.

oeeded, and that there would be a very large addition to the values
as the work approached completion.

These conditions have been realized even in greater measure than
had been anticipated. In many cases lands have trebled in value,
and the owners have benefited by a greatly increased demand due
solely to the expenditures made by the Government, and to the
prospect of an early water supply in a region where previously
the probabilities of an irrigation system seemed very remote because
of the enormous expenditures required in order to secure a water
supply.

It will be noted that prior to the passage of the Reclamation Act
there had been great activity in the construction of irrigation sys-
tems, with the result that when the Government entered the field
there were practically no projects which could be developed without
extraordinary expenditures or the solution of difficult engineering
problems. Accordingly the lands affected by most of these projects
were those for which a possible irrigation system seemed very re-
mote before the Federal statute became eflfective.

In ' order to secure prompt returns of the expenditures by the
Government the Secretary of the Interior required, in all cases
where there was a considerable proportion of land in private own-
ership, that positive assurance Should be given for the sale of tracts
held in excess of 160 acres. To meet this condition the water users
associations adopted the plan of requiring the holders of excess
lands to execute what is known as an excess holding contract. This
is in effect a deed of trust transferring the title to the water users
association in trust with power to sell the excess holdings in case
the owner does not dispose of the land in small tracts to those who
are qualified to file and do file water right applications in con-
formity with the Reclamation Act.

Up to the present time it has not been necessary to enforce these
contracts because the owners of the lands have been gradually dis-
posing of the excess holdings, so that in the projects which have
been completed up to the present time no diflRculty along this line
has thus far been encountered.

Before construction is begun by the Government the water users
association is required to enter into a contract with the Secretary
of the Interior in the following form :

WATER USERS ASSOCIATIONS. 675

FORM OF CONTRACT BETWEEN ASSOCIATIONS OF WATER USERS
AND THE SECRETARY OF THE INTERIOR.

These articles of agreement, made and entered into this .... day of

19. . . ., by and between the United States of America, acting in

this behalf by , Secretary of the Interior, party of the first

part, and the Water Users Association, a corporation duly

organized and existing under the laws of the of ,

party of the second p^rt, their successors and assigns, witnesseth:

That whereas the Water Users Association is a corporation

organized and existing under the laws of the of

for the purposes mentioned in its articles of incorporation and by-laws,
copies of which are appended to this agreement and are, for every purpose
of the interpretation, construction, and consideration of this agreement and
of the rights of the parties hereunder, to be deemed, held, read, and con-
sidered as if fully written out or printed herein, and deemed a part hereof;
and

Whereas the lands embraced within the area proposed to be irrigated as
described in said articles of incorporation or by-laws are naturally desert
and arid and incapable of proper cultivation without irrigation, and will
to a greater or less extent remain unreclaimed, unfit for habitation, and
uncultivated, in which condition they, or a great part thereof, now are,

unless the waters of the River in and

tributaries be impounded and the flow thereof otherwise regulated and
controlled; and

Whereas, the Secretary of the Interior contemplates the construction of
certain irrigation works under the provisions of an act of Congress entitled
"An act appropriating the receipts from the sale and disposal of public
lands in certain States and territories to the construction of irrigation works
for the reclamation of arid lands,'' approved June 17, 1902, for the irriga-
tion and reclamation of the lands described in the said articles or by-laws;
and

Whereas the incorporators and shareholders of said Water

Users Association are, and under the provisions of its articles of incorpora-
tion and by-laws must be, owners and occupants of lands in said area, and
in some cases are appropriators of water for the irrigation thereof, and in
addition thereto such incorporators and shareholders and their successors or
assigns must initiate rights to the use of water from the said proposed irri-
gation works, to be constructed by the Secretary of the Interior as soon
as such rights may be initiated, and thereafter complete the acquisition
thereof in the manner and upon the terms and conditions to be prescribed
therefor by the Secretary of the Interior, which rights shall be, and there-
after continue to be, forever appurtenant to designated lands owned by
such shareholders; and

Whereas neither the relative priority nor the extent of the individual
appropriations of such water heretofore made by said incorporators and
shareholders for the lands described in said articles or by-laws, and which
are now vested rights, have been ascertained or determined, but said
incorporators and shareholders have agreed, among themselves, by the terms
and provisions of said articles of incorporation and by-laws, upon the rules
and principles by and upon which the relative priority and the extent of
their several appropriations and vested rights to the use of such waters
shall be determined:

Now, therefore, it is agreed and understood by and between the parties
hereto —

1. That if the Secretary of the Interior shall authorize and cause the
construction of said irrigation works, the said association will take prompt
action to secure the determination by the courts of the relative rights of
its shareholders to the use of the water for said lands, and that in the

676 DISTRIBUTION OP WATER.

determination of such rights and of their respective rights to the use of
water acquired under said act of Congress the rules and principles set out
in said articles of incorporation and by-laws, for such determination, shall
be deemed the established rules and principles for that purpose.

2. That only those who are or who may become members of said associa-
tion, under the provisions of its articles of incorporation and by-laws,
shall be accepted as applicants for rights to the use of water available
by means of said proposed irrigation works.

3. That the aggregate amount of such rights to be issued shall, in no
event, exceed the number of acres of land capable of irrigation by the
total amount of water available for the purpose^ being (1^ the amount now
appropriated by the shareholders of said association, and (2) the amount
to be delivered from all sources in excess of the water now appropriated;
and that the Secretary of the Interior shall deternune the number of acres
so capable of such irrigation aa aforesaid, his determination to be made
upon due and expert consideration of all available data, and to be based
upon and measured and limited by the beneficial use of water.

4. That the payments for the water rights to be issued to the share-
holders of said association, under the provisions of said act of Congress^

shall be divided into not less than annual payments, the first of

which shall be payable when the water is first delivered from said works,
or within a, reasonable time thereafter, and after -due notice thereof by
the Secretary of the Interior to the association, and that the cost of said
proposed irrigation works shall be apportioned equally per acre among those
acquiring such rights.

5. That the said Water Users Association hereby guarantees the pay-
ments for that part of the cost of the irrigation works which shall be ap-
portioned by the Secretary of the Interior to its shareholders, and also for
the cost of operation and noLaintenance as may be assessed from year to
year by the Secretary of the Interior, and will promptly levy calls or
assessments therefor and collect or require prompt payment thereof in such
manner as the Secretary of the Interior may direct; that it will promptly
pay the sums collected by it to the receiver of the local land office for the
district in which said lands are situated; that it will promptly employ the
means provided and authorised by the said articles of incorporation and
by-laws for the enforcement of such collections, and will not change, alter,
or amend its articles. of incorporation or by-laws in any manner whereby
such means of collection, or the lien given to it by the shareholders to
secure the payment thereof, or of any assessments contemplated or author-
ised thereby, shall be impaired, diminished, or rendered less effective, with-
out the consent of the Secretary of the Interior.

6. That the United States shall in no manner be responsible for the
sums collected by said association until they have been paid into the hands
of the receiver of the local land office, as provided by the law, and in
accordance with such regulations as may be prescribed by the Secretary of
the Interior.

7. That for the purpose of enforcing said collections, the association
will adopt and enforce proper by-laws. Subject to the approval of the
Secretary of the Interior, and not change them so as to in anywise impair
their efflLciency for said purpose, and will otherwise do any and all things
it is authorized and empowered to do in the premises.

8. That the association wiU adopt and enforce such rules and regula-
tions as it is authorized b^ its articles of incorporation and by-laws to
adopt and enforce, concerning the use of water by its shareholders and
concerning the administration of the affairs of the association, to efteetu-
aUy carry out and promote the purposes of its organization within the
provisions of said articles of incorporation and by-laws, which rules and
regulations shall be subject to the approval of the Secretary of the Interior,
and that if the association fail to make and adopt such rules and regula-

WATER USEB8 ASSOCIATIONS. 677

tions, then the Secretary of the Interior may prescribe them; but in such
event the Secretary of the Interior shall impose no rule or regulation
interfering with any vested right of the shareholders of the association,
as defined or modified by said articles of incorporation and by-laws.

9. That persons who are not now members of the association, but who
may be the owners or occupants of land to be irrigated, as described in
its articles of incorporation or by-laws, or of added lands as therein pro-
vided for and to whom rights to the use of water from the proposed irriga-
tion works may be issued by the United States, may, at the designation
of the Secretary of the Interior, become members of the association upon
subscribing to the stock thereof and upon compliance with the other condi-
tions prescribed for such membership.

101 That in all the relations between the United States and this asso-
ciation and the members of the association, the rights of the members of
the association to the use of water where the same have vested, are to be
defined, determined, and enjoyed in accordance with the provisions of the
said act of Congress and of other acts of Congress on the subject of the
acquisition and enjoyment of the rights to use water; and also by the
laws of , where not inconsistent therewith, modified, if modi-
fied at all, by the provisions of the articles of incorporation and by-laws
of said association.

11. That nothing contained in this agreement, or to be implied from the
fact of its execution, shall be construed, held, or deemed to be an approval
by the Secretary of the Interior, nor an adoption by him of the articles
of incorporation or by-laws of said association in all their details as the
form of organization of water users contemplated and authorized by Sec-
tion 6 of the said act of Congress of June 17, 1902; but such approval and
adoption is expressly reserved until the conditions prescribed in said act
authorizing such approval and adoption shall have arisen; and that when
the Secretary of the Interior shall make, approve, and promulgate rules and
regulations for the administration of the water to be supplied from said
pioposed irrigation works, such rules and regulations and such modifications
thereof as the Secretary may, from time to time, approve and promulgate,
shall be deemed and held to be obligatory upon this association as fully
and cjpmpletely, and to every intent and purpose as if they were now made,
approved, promulgated, and written out in full in this agreement, and the
same are to be so read and construed.

In witness whereof the undersigned have hereunto subscribed their names
and affixed their seals the day and year first herein written.

[Departmental Seal.] ,

Secretary of the Interior,
For and on behalf of the United States of America,

Party of the First Part.

.[Corporate Seal.] ,

Party of the Second Part.
Attest: , Secretary,

By this contract the Association agrees to adjudicate the water
rights of its shareholders in accordance with the principles set out
in the articles of incorporation and by-laws; guarantees the pay-
ment of the charges apportioned by the Secretary of the Interior
against the lands of its stockholders; and agrees to adopt and

678 DISTRIBUTION OF WATER.

enforce rules and regulations concerning the use of water by its
shareholders which shall conform to the requirements of the Gov-
ernment.

On the other hand, the Government agrees to fix the irrigable
acreage so that there shall be a suflBcient water supply for each

tract, and to recognize only those who are members of the associa-

tion as qualified to apply for water rights. The contract covers
various other details of the relations between the association and
the United States.

These associations have been able to facilitate the operations of
the Government in many directions. They have assisted in fixing
the prices of lands which it was necessary for the Government to
purchase. In several cases they have acquired lands by condemna-
tion when it seemed more practicable for the association to take
this action than for the United States. •

These water users associations represent a rather novel means
of co-operation in carrying out the legislative will, and their future
proceedings will doubtless present for solution many interesting
legal problems.

PART VI

STATUTES.

FEDERAL STATUTES.

Constitution. — Amendtnent V. '*No person shall be ... . nor
be deprived of life, liberty or property without due process of law ;
nor shall private property he taken for public use, without just
compensation."' (This amendment applies only to acts of Con-
gress.)

Amendment XIV, '* .... Nor shall any State deprive any
person of life, liberty or property without due process of law ; nor
deny to any person within its jurisdiction the equal protection of the
laws."

Revised Statutes. — Rev, Stats,, sec. 2339. ''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 the decisions of courts, the possessors and owners of such
vested rights shall be maintained and protected in the same; and
the right of way for the construction of ditches and canals for the
purposes herein specified is acknowledged and confirmed; but
whenever any person, in the construction of any ditch or canal,
injures or damages the possession of any settler on the public do-
main, the party committing such injury or damage shall be liable
to the party injured for such injury or damage." — Sec. 9, A. C,
July 26, 1866; 14 Stats. 253, c. 262 (U. S. Comp. Stats. 1901, p.
1437).

Rev, Stats., sec, 2340. *'A11 patents granted, or pre-emption or
homesteads allowed, shall be subject to any vested and accrued
water rights, or rights to ditches and reservoirs ilsed in connection

(679)

680 STATUTES.

with such water rights as may have been acquired under or recog-
nized by the preceding section." — Sec. 17, A. C, July 9, 1870; 16
Stats. 218 (U. S. Comp. Stats. 1901, p. 1437).

Desert Land Act.— iP Stats, 377, 1 8upp. Rev. Stats. 137.
Enacted March 5, 1877, Amended 1891.

By this act, commonly called the Desert Land Act, any citizen
or person entitled to become such, might procure title to 640 acres
of arid land in the States of California, Oregon and Nevada and
the Territories of Washington, Idaho, Montana, Utah, Wyoming,
Arizona, New Mexico and Dakota, by conducting water upon and
reclaiming the same within three years from the filing of a declara-
tory statement in the local land office and by the payment to the
government of $1.25 per acre.

''Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That it shall
be lawful for any citizen of the United States, or any person of
requisite age 'who may be entitled to become a citizen, and
who has filed his declaration to become such,' and upon payment
of twenty-five cents per acre — to file a declaration under oath
with the register and the 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 con-
ducting 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 water of all
lakes, rivers, and other sources of water supply upon the public
lands and not navigable, shall remain and be held free for the
appropriation and use of the public for irrigation, mining and
manufacturing purposes subject to existing rights. Said declara-
tion 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 register and receiver of the reclamation of said tract of land

FEDERAL STATUTES. 681

in the manner aforesaid, and upon the 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 lands and mineral
lands which will not, without irrigation, produce some agricultural
crop, shall be deemed desert lands, within the meaning of this
Act, which fact shall be ascertained by proof of two or more
credible witnesses under oath, whose affidavits shall be filed in the
land office in which said tract of land may be situated.

"Sec. 3. That this Act shall only apply to and take effect in the
states of California, Oregon and Nevada, and the territories of
Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mex-
ico 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 land office."

The above act was amended by the act of March 3, 1891 (26 Stats.
1096), and, as amended, was, by section 2 thereof, extended to the
State of Colorado.

Bight of Way Acts.— ^c* of March 3, 1891; 26 Stats. 1095, c. 561,
1 Siipp. Rev, Stats. 942, 946 (1891). Irrigation companies given
right of way over public reservations subject to liability for in-
jury to settlers.

Section 18 of said act of March 3, 1891, reads (p. 1101) : **Sec.
18. 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 State or Territory which shall have filed, or
may hereafter file, with the Secretary of the Interior a copy of its
articles of incorporation and due proofs 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 line of 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

682 STATUTES.

to interfere with the proper occupation by the government of any
such reservation, and all maps of location shall be subject to the
approval of the department of the government having jurisdiction
of such reservation, and the privilege herein granted shall not be
construed to interfere with the control of water for irrigation and
other purposes under authority of the respective States or Terri-
tories.

**Sec. 19. That any canal or ditch company desiring to secure
the benefits of this act shall, within twelve months after the loca-
tion of ten miles of its canal, if the same be upon surveyed lands,
and if upon unsurveyed lands, within twelve months after the sur-
vey thereof by the United States, file with the register of the land
office for the district where such land is located a map of its canal
or ditch and reservoir; and upon the approval thereof by the Sec-
retary 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. When-
ever any person or corporation, in the construction of any canal,
ditch, or reservoir, injures or damages the possession of any set-
tler on the public domain, the party committing such injury or
damage shall be liable to the party injured for such injury or dam-
age.

"Sec. 20. That the provisions of this act shall apply to all
canals, ditches, or reservoirs heretofore or hereafter constructed,
whether constructed by corporations, individuals, or association of
individuals, on the filing of the certificates and maps herein pro-
vided 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 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 sec-
tion, the rights herein granted shall be forfeited as to any uncom-
pleted section of said canal, ditch, or reservoir, to the extent that
the same is not completed at the date of the forfeiture.

FEDERAL STATUTES. 683

*'Sec. 21. That nothing in this act shall authorize such canal
or ditch company to occupy such right of way except for the pur-
pose of said canal or ditch, and then only so far as may be neces-
sary for the construction, maintenance, and care of said canal or
ditch."

Act of May 11, 1898 (30 Stats, 404). "Sec. 2. That the rights
of way for ditches, canals, or reservoirs heretofore or hereafter ap-
proved under the provisions of sections eighteen, nineteen, twenty,
and twenty-one of the act entitled *An act to repeal timber-culture
laws, and for other purposes,* approved March third, eighteen
hundred and ninety-one, may be used for purposes of a public
nature ; and said rights of way may be used for purposes of water
transportation, for domestic purposes, or for the development of
power, as subsidiary to the main purpose of irrigation."

Municipal and Mining. Act of Fehniary 1, 1905 (33 Stats. 628).
**Sec. 4- That rights of way for the construction and maintenance
of. dams, reservoirs, water plants, ditches, flumes, pipes, tunnels,
and canals, within and across the. forest reserves of the United
States, are hereby granted to citizens and corporations of the United
States for municipal or mining purposes, and for the purposes of
the milling and reduction of ores, during the period of their bene-
ficial use, under such rules and regulations as may be prescribed
by the Secretary of the Interior, and subject to the laws of the State
or Territory in which said reserves are respectively situated. ' '

Medicinal Springs. Act of February 28, 1899(30 Stats. 908),
"The Secretary of the Interior .... is hereby authorized, under
such rules and regulations as he from time to time may make, to
rent or lease to responsible persons or corporations applying there-
for suitable spaces and portions of ground near, or adjacent to,
mineral, medicinal, or other springs, within any forest reserves es-
tablished within the United States, or hereafter to be established,
and where the public is accustomed or desires to frequent, for
health or pleasure, for the purpose of erecting upon such leased
ground sanitariums or hotels, to be opened for the reception of the
public. And he is further authorized to make such regulations,
for the convenience of people visiting such springs, with reference
to spaces and locations, for the erection of tents or temporary dwell-
ing-houses to be erected or constructed for the use of those visit-
ing such springs for health or pleasure. And the Secretary of

684 STATUTES.

the Interior is authorized to prescribe tUe terms and duration and
the compensation to be paid for the privileges granted under the
provisions of this act.

''Sec. 2. All funds arising from the privileges granted here-
under shall be covered into the Treasury of the United States as
a special fund, to be expended in the care of public forest reserva-
tions.''

Electricity and Water. Act of February 15, 1901 (31 Stats.
790). ''The Secretary of the Interior .... is authorized and
empowered, under general regulations to be fixed by him, to per-
mit the use of rights of way through the public lands, forest and
other reservations of the United States, and the Yosemite, Sequoia,
and General Grant national parks, [791] California, for electrical
plants, poles, and lines for the generation and distribution of
electrical power, and for telephone and telegraph purposes, and for
canal», ditches, pipes and pipe-lines, flumes, tunnels, or other water
conduits, and for water plants, dams and reservoirs used to promote
irrigation or mining or quarrying, or the manufacturing or cutting
of timber and lumber, or the supplying of water for domestic,
public, or any other beneflcial uses to the extent of the ground
occupied by such canals, ditches, flumes, tunnels, reservoirs, or
other water conduits or water plants, or electrical or other works
permitted hereunder, and not to exceed fifty feet on each side of
the marginal limits thereof, or not to exceed fifty feet on each side
of the center line of such pipes and pipe-lines, electrical, telegraph,
and telephone lines and poles, by any citizen, association, or corpora-
tion of the United States, where it is intended by such to exercise
the use permitted hereunder or any one or more of the purposes
herein named : Provided, That such permits shall be allowed with-
in or through any of said parks or any forest, military, Indian, or
other reservation only upon the approval of the chief officer of the
Department under whose supervision such park or reservation falls
and upon a finding by him that the same is not incompatible with
the public interest: Provided further^ That all permits given here-
under for telegraph and telephone purposes shall be subject to the
provisions of title sixty-five of the Revised Statutes of the United
States, and amendments thereto, regulating rights of way for tele-
graph companies over the public domain: And provided further.
That any permission given by the Secretary of the Interior under
the provisions of this act may be revoked by him or his successor

P^'^^ERAL STATCi'ES. 685

in his discretion, and shall not be held to confer any right, or ease-
ment, or interest in, to, or over any public land, reservation, or
park."

Edison Electric Company. Act of May 1, 1906 (34 Stats. 163).
"Is hereby granted a permit, the duration of which shall be fixed
by the Secretary of the Interior immediately after the passage of
this act, revocable during the term fixed by said Secretary only in
the manner and for the causes hereinafter specified, to occupy and
use lands, to be designated in the manner hereinafter specified,
within the San Bernardino, Sierra, and San Gabriel forest reserves,
in the State of California, for canals, conduit lines, pole lines, power-
houses, diverting dams, necessary grounds to be submerged above
the. diverting dams, and necessary buildings and structures for the
water power plants hereinafter described, for the generation, trans-
mission, and distribution of electrical power."

Under the act of March 3, 1891,. first above given, a reservoir
must be completed in five years. Baldridge v. Leon etc. Co., 20
Colo. App. 518, 80 Pac. 477. A right of way is granted for the
specific purposes of constructing "canals, ditches and reservoirs"
on public lands. This is but an easement, without .any grant of
.right to occupy or use the surface of the land embraced in it for
any other purpose than that specified. Whitmore v. Pleasant
Valley Co. (Utah), 75 Pac. 748. The statute applies only to
vacant public land, and gives no right against an occupant
existing at the time of proceeding under it. Nippel v. Forker
(Colo. App.), 47 Pac. 766. It applies only to acquiring rights
of way, and does not include a right to build a house ' along-
side a ditch. IJnd. This act is the only one applying to ditch
building on military or Indian reservations. United States v. Con-
rad Inv. Co., 156 Fed. 131. It applies to a right of way over an
Indian reservation (35 Land Dec. 550), but not to a forest re-
serve. 35 Land Dec. 156; 28 Id. 474; 34 Id. 215. The act does
not apply to Alaska. 35 Land Dec. 297. The permission to use
adjacent materials (timber, etc.) applies only to original construc-
tion and not to additions or repairs. 34 Land Dec. 213.

The act of 1891 was supplemented by act of Jan. 21, 1895, 28
Stats, at Large, 635, as amended May 11, 1898, giving the Secretary
of the Interior power to grant an additional fifty feet on each side
of the right of way (excepting parks, Indian reservations, military

686 STATUTES.

reservations and forest reserves (35 Land Dec. 156, 28 Id. 474) ;
and by act of Jan, 13, 1897, 29 Stctts. at Large, 484, providing for
location of reservoirs for watering livestock, filing maps thereof;
and by act of Feh. 15, 1901, 31 Stats, at Large, 790, providing for
additional maps and filings, and by acts providing for ditches on
Forest Reserves, above given, by which rights of way may be located
over Forest Reserves on giving bond to Secretary of Agriculture
with such stipulations as he may require. (Circular of Land Office,
Apr. 25, 1906. See, also, A. C. May 14, 1896, 29 Stats. 120, and A.
C. June 4, 1897, concerning Forest Reserves.)

For department requirements and procedure under these acts,
see 34 Land Dec. 212. See, also, sec. 149a, of text above.

State Reservoirs. Approved Feby. 26, 1897, 29 Stats. 599, c. 335.
"Be it enacted by the senate and house of representatives of the
United States of America in congress assembled, That all reservoir
sites reserved or to be reserved shall be open to use and occupation
under the right of way Act of March third, eighteen hundred and
ninely-one. And any state is hereby authorized to improve and
occupy such reservoir sites to the same extent as an individual or
private corporation, under such rules or regulations as the secre-
tary of the interior may prescribe : Provided, That the charges for
water coming in whole or part from reservoir sites used or occu-
pied under the provisions of. this Act shall always be subject to
the control and regulation of the respective states and territories
in which such reservoirs are in whole or part situate."

The Carey Act.— ^8 Stats. 372-427; 2 Supp. Rev. Stats. 259
(1894); amended Jum 11, 1896 (29 Stats. 434; 2 Supp. Rev. Stats.
525). Known as '*The Carey Act." Under this act each arid
State may select one million acres of arid land and supervise its
irrigation. Seven States have done so. In Wyoming four canals
have been built under the act. The following statement is given
by the State Engineer of Idaho in his compilation of the Idaho
Laws in 1905 :

The Carey Act was passed by Congress in 1894, and amended
in 1896 and 1901. It was intended "to aid the public land States
in the reclamation of desert lands therein." Under its provisions,
the State is authorized to enter into contracts with individuals
or corporations to construct irrigation works for the reclamation

FEDEBAL STATUTES. 687

of desert lands, and at the same time enter into an agreement with
the United States, tinder which title to the lands will pass to the
State and from the State to the settler, when the provisions of the
law have been complied with, after the approval of the general plan
of reclamation by the Secretary of the Interior. The various steps
to be followed by the applicant who desires to proceed under the
Carey act are these:

1st. File with the State Board of Land Commissioners a state-
ment sho\)iaiig the land to be reclaimed, with a request for its selec-
tion by the State.

2d. File with the above request a map, in duplicate (drawn
upon tracing linen, on a scale of 1,000 feet to the inch), showing
the lands and the system of irrigation. (The map should bear
an affidavit of the engineer, who made or supervised the prepara-
tion of the map and plan; and also of the officer authorized by
the State to make its selection under the act.)

3d. File two copies of the field-notes from which the map is
drawn.

4th. File three copies of complete list of lands to be '* selected,
designated by legal subdivisions properly summed up at the foot
of each page and at the end of the list." (These lists should be
clear carbon copies, and should be dated and verified by a cer-
tificate of the selecting agent.)

5th. File a proposal to construct the irrigation works necessary
to properly irrigate the described land. This proposal shall state :
1. The source of water supply; 2. The quantity of water appro-
priated; 3. A certified copy of water location notice or permit to
appropriate water from the State Engineer ; 4. The price per acre
at which water rights will be sold to settlers and the terms of pay-
ments; 5. The annual charge per acre for maintenance of works
until ownership passes to settlers ; 6. The time required for the com-
pletion of works and delivery of water to the settler; 7. Furnish
statement to enable the board to judge the financial ability of the
applicant to carry out the proposed plans ; 8. A certified check for
$250, payable to the State Treasurer, must be deposited with the
Secretary of the Board, to be forfeited to the State in case of failure
to enter into contract with the State Board in accordance with the
proposal, if the proposal is accepted; otherwise, to be returned to
the proposer.

688 STATUTES.

Maps and plaiis must be prepared in accordance with the rega-
lations of the Department of the Interior and the State Engineer's
olBBce, and copies of maps and documents furnished the State En-
gineer's ofSee.

A suit by a State to annul the rights of an individual under the
Carey Act is a suit arising under the laws of the United States such
as to be removable to the Federal courts. State of Oregon v. Three
Sisters Irr. Co. (Or.), 158 Fed. 346.

The act is as follows : August Id, 1894, 28 Stats, S72, 422, c. SOI,
Rev. Stats. (2 Supp.) 259. *' (Sec. 4). That to aid the public land
states in the reclamation of the desert lands therein, and the settle-
ment, cultivation and sale thereof in small tracts to actual settlers,
the secretary of the interior with the approval of the president,
be, and hereby is, authorized and empowered, upon proper appli*
cation of the state to contract and agree, from time to time, with
each of the states in which there may be situated desert lands as
defined by the Act entitled 'An Act to provide for the sale of
desert land, in certain states and territories,' approved March
third, eighteen hundred and seventy-seven, and the Act amendatory
thereof, approved March third, eighteen hundred and ninety-one,
binding the United States to donate, grant and patent to the state
free of cost for survey or price such desert lands, not exceeding
one million acres in each state, as the state may cause to be irri-
gated, reclaimed, occupied, and not less than twenty acres of each
one-hundred*and-8ixty-acre tract cultivated by actual settlers, with-
in ten years next after the passage of this Act, as thoroughly
as is required of citizens who may enter under the said desert land
law.

'^ Before the application of any state is allowed or any contract
or agreement is executed or any segregation of any of the land
from the public domain is ordered by the secretaxy of the in-
terior, the state shall file a map of the said land proposed to be
irrigated which shall exhibit a plan showing the mode of the con-
templated irri^tion and which plan shall be su£Scient to thor-
oughly irrigate and reclaim said land and prepare it to raise
ordinary agricultural crops, and shall also show the source of the
water to be used for irrigation and reclamation, and the se^etary
of the interior may take necessaiy regulations for the reserva-
tion of the lands applied for by the states to date from the date
of the filing of the map and plan of irrigation, but such reserva-

FEDERAL STATUTES. 689

■

tion shall be of no force whatever if such map and plan of irri-
gation shall not be approved. That any state contracting under
this section is hereby authorized to make all necessary .contracts
to cause the said lands to be reclaimed, and to induce their settle-
ment and cultivation in accordance with and subject to the pro-
visions of this section ; but the state shall not be authorized to
lease any of said lands or to use or dispose of the same in any
way whatever, except to secure their reclamation, cultivation and
settlement.

*'As fast as any state may furnish satisfactory proof according
to such rules and regulations as may be prescribed by the secre-
tary of the interior, that any of said lands are irrigated, reclaimed
and occupied by actual settlers, patents shall be issued to the
state or its. assigns for said lands so reclaimed and settled: Pro-
vided, That said states shall not sell or dispose of more than one
hundred and sixty acres of said lands to any one person, and
any surplus of money derived by any state from the sale of said
lands in excess of the cost of their reclamation, shall be held as
a trust fund for and be applied to the reclamation of other desert
lands in such state. That to enable the secretary of the interior
to examine any of the lands that may be selected under the pro-
visions of this section, there is hereby appropriated out of any.
moneys in the treasury, not otherwise appropriated, one thousand
dollars."

July 11, 1896, 29 Stats, 434. *'That under any law heretofore or
hereafter enacted by any state, providing for the reclamation of
arid laiids, in pursuance and acceptance of the terms of the grant
made in section four of an act entitled, 'An Act making appro-
priations for the sundry civil expenses of the government for the
fiscal year ending June thirtieth, eighteen hundred and ninety-
five,' .approved August eighteenth,- eighteen hundred and ninety-
four, a lien or liens is hereby authorized to be created by the state
to which such lands are granted and by no other authority what-
ever, and when created shall be valid on and against the separate
legal subdivisions of land reclaimed, for the actual cost and nee-
essary expenses of reclamation and reasonable interest thereon
from the date of reclamation until disposed of te actual settlers;
and when an ample supply of water is actually furnished in a

- Water Bighti— 44

690 STATUTES.

substantial ditch or canal, or by artesian wells or reservoirs, to
reclaim a particular tract or tracts of such lands, then patents
shall issue for the same to such state without regard to settle-
ment or cultivation : Provided, That in no event, in no contingency,
and under no circumstances shall the United States be in any
manner directly or indirectly liable for any amount of any such
lien or liability, in whole or in part.''

Debris Act. — 27 Stats, at Large, 507. The act of Congress pro-
vides for the appointment of three army engineers to be known
as the California Debris Commission. Its jurisdiction, so far as it,
affects hydraulic mining, extends to the territory drained by the
Sacramento and San Joaquin Rivers. Hydraulic mining, directly
or indirectly, injuring the navigability of said river systems, except
as permitted under the provisions of the act, is prohibited. The
commission is directed to adopt plans to prevent damage from debris
resulting from mining operations, with a view of restoring the
navigability of said' rivers to the condition existing in 1860, and of
permitting hydraulic mining, so far s:A it can be done * * without in-
jury to the navigability of said rivers or the lands adjacent there-
to. ' ' Any person or persons who desire to operate a mine, or mines,
by hydraulic process must file with the commission a verified peti-
tion and a release or surrender to the United States of the right or
privilege to regulate the manner in which the debris from such
mines shall be restrained and the amount of debris that may be
produced from such mines. Thereupon a notice, specifying the con-
tents of the petition and fixing a time previous to which all proofs
are to be submitted, is to be published in a daily paper, or in three
issues of a weekly paper. On or before the time fixed *'all parties
interested, either as petitioners or contestants, whether miners or
agriculturists, may file affidavits, plans and maps, in support of
their respective claims. Further hearings, upon notice to all par-
ties of record, may be granted by the Commission when necessary."

If '* within thirty days after the time so fixed" a majority of the
commission decide in favor of the petitioner, the commission must
thereupon make an order specifying in detail the method and man-
ner of operating such mine, the restraining works to be built, the

FEDERAL STATUTES. 691

location and materiqji thereof, and suc\\ further safeguards **a8 will
protect public interests and prevent injury to the navigable rivers,
and the lands adjacent thereto," all to be done at the expense of
the miner.

The mine owner must then construct the prescribed works, under
the supervision of the commission, and upon the completion thereof
** permission shall thereupon be granted to the owner or owners of
such mine or mines to commence mining operations subject to the
conditions of said order and the provisions of this act." TJie order
may be modified from time to time and the permission may be sus-
pended, as conditions may demand. The act contains many other
provisions relating to the administrative duties and powers of the
board.

National Irrigation Act. — 32 Stats, at Large, 388. Act of June
17, 1902. The present Irrigation Act. In Stats. 1904-05, page 706.
this act is referred to as **the National Irrigation Law." In same,
page 1032, it is referred to as ** known as the Reclamation Act."

Briefly : The proceeds of sale of all public lands in the West are
set aside. The Secretary of the Interior is to plan irrigation
works. He may withdraw from entry lands needed for prosecu-
tion of the work, and special rules are provided for entry of lands
to be irrigated. Section 8 provides that this act shall not be con-
strued to interfere with the laws of any State or Territory con-
cerning water, or with any vested rights thereunder. The law of
appropriation is recognized, ** Provided that the right to the use
of water acquired under the provisions of this act shall be ap-
purtenant to the land irrigated, and beneficial use shall be the basis,
the measure and the limit of the right. ' '

A proviso found in the Sundry Civil Appropriation Act of Con-
gress of August 30, 1890 {26 Stats. 391, c. 837, 6 Fed. Stats. Ann.
508 [V. S. Camp. Stats. 1901, p. 1570]), reads as follows: ''That in
all patents for lands hereafter taken up under any of the land laws
of the United States, or on entries or claims validated by this act,
west of the one hundredth meridian, it shall be expressed that
there is reserved from the land in said patent described a right of
way thereon for ditches or canals (instructed by the authority of
the United States. ' '

692

STATUTES.

The National Irrigation ^ct follows in fuH»:

Chap. 1093.

A.n act appropriating the receipts from
the sale and disposal of pubUc
lands in certain States and Terri-
tories to the construction of irri-
gation works for the reclamation
of arid lands.

Be it enacted by the Senate and Hottse
of Representatives of the United
States of America in Congress as-
sembled: *

Section 1. That all moneys received
from the sale and disposal of pnblic
lands in Arizona, California, Colorado,
Idaho, Kansas, Montana, Nebraska,
Nevada, New Mexico, North Dakota,
Oklahoma, Oregon, South Dakotn,
Utah, Washington, and Wyoming, be-
ginning with the fiscal year ending
June 30, 1901, including the surplus of
fees and commissions in excess of al-
lowances to registers and receivers,
and excepting the five per centum
of the proceeds of the sales of pub-
lic lands in the above States set aside
by law for educational and other pur-
poses, shall be, and the same are here-
by, reserved, set aside, and appro-
priated as a special fund in the treas-
ury to be known as the ''reclamation
fund," to be used in the examination
and survey for and the construction
and maintenance of irrigation works
for the storage, diversion, and devel-
opment of waters for the reclama-
tion of arid and semi-arid lands in
the said States and Territories, and
for the payment of all other expendi-
tures provided for in this act: Pro-
vided, that in case the receipts from
the sale and disposal of public
lands other than those realized
from the sale and disposal of lands
referred to in this section are in-
sufficient to meet the requirements
for the support of agricultural col-
leges, in the several States and
Territories, under the act of August
30, 1890, **An act to apply a por-
tion of the proceeds Of the public
lands to the more complete endow-
ment and support of the colleges
for the benefit of agriculture and
the mechanic arts, established under
the provisions of an act of Con-
gress approve<l July 2, I860,'* the

deficiency, if any, in the sum neces-
sary for the support of the said
college shall be provided for from any
moneys in the treasury not otherwise
appropriated.

Sec. 2. That the Secretary of the
Interior is hereby authorized and
directed to make examinations and
surveys for, and to locate and
construct, as herein provided, irri-
gation works for the storage, diver-
sion, and development of waters, in-
cluding artesian wells, and to report
to Congress at the beginning of each .
regular session as to the results of
such examinations and surveys, giv-
ing estimates of cost of all contem-
plated works, the quantity and loca-
tion of the lands which can be irri-
gated therefrom, and all facts rela-
tive to the practicability of each irri-
l(ation project; also the costs of
works in process of construction as
well as of those which have been com-
pleted.

Sec. 3. That the Secretary of the
Interior shall, before giving the
public notice provided for in sec-
tion 4 of this act, withdraw from
public, entry the lands required for
any irrigation works contemplated
under the provisions of this act, and
shall restore to public entry any
of the lands so withdrawn when, in
his judgment, such lands are not
required for the purposes of this act;
and the Secretary of the Interior is
hereby authorized, at or immediately
prior to the time of beginning the
surveys for any contempUted irriga-
tion works, to withdraw from entry,
except under the homestead laws, any
public lands believed to be susceptible
of irrigation from said works: Pro-
vided, that all lands entered and en-
tries made under the homestead laws
within areas so withdrawn during
such withdrawal shall be subject to
all the provisions, limitations, charges,
terms, and conditions of this act ; that
said surveys shall be prosecuted dili-
gently to completion, and upon the
completion thereof, and of the neces-
sary maps, plans and estimates of
cost, the Secretary of the Interior
shall determine whether or not said
project is practicable and advisable.

FEDEBAL STATUTES.

693

and if determined to be impracticable
and iinadviaable, he shall thereupon
restore said lands to entry ; that pub-
lic lands which it is proposed to irri-
gate bj means of any contemplated
works shall be subject to entry only
under the provisions of the homestead
laws in tracts of not less than forty
nor more than one hundred and sixty'
acres, and shall be subject to the limi-
tationSy charges, terms and conditions
herein provided: Provided, that the
commutation provisions of the home-
stead laws shall not apply to entries
made under this act.

Sec. 4. That upon the determina-
tion by the Secretary of the In-
terior that any irrigation project is
practicable, he may cause to be let
contracts for the construction of the
same in such portions or sections as
it may be practicable to construct and
complete as parts of the whole pro-
ject, providing the necessary funds
for such portiotis or sections are avail-
able in the reclamation fund, and
thereupon he shall give public notice
of the lands irrigable under such pro-
ject, and limit of area per entry,
which limit shall represent the acreage
which, in the opinion of the Secretary,
may be reasonably required for the
support of a family upon the lands
in question; also of the charges which
shall be made per acre upon the said
entries, and upon lands in private
ownership which may be irrigated by
the waters of the said irrigation pro-
ject, and the number of annual install-
ments, not exceeding ten, in which
such charges shall be paid and the
time when such payments shall com-
mence. The said charges shall be de-
termined with a view of returning to
the reclamation fund the estimated
cost of construction of the project,
and shall be apportioned equitably:
Provided, that in all construction work
eight hours shall constitute a day's
work, and no Mongolian labor shall be
employed thereon.

Sec. 5. That the entryman upon
lands to be irrigated by such works
shall, in addition to compliance with
the homestead laws reclaim at least
one-half of the total irrigable area
of his. entry for agricultural pur-

1 The Secretary of the Interior
ruled in June, 1906, that the limit of

poses, and before receiving patents for
the lands covered by his entry shall
pay to the Government the charges ap-
portioned against such tract, as pro-
vided in section 4. No right to the
use of water for land in private
ownership shall be sold for a tract
exceeding one hundred and sixty acres
to any one landowner, and no such
sale shall be made to any landowner
unless he be an actual bona fide resi-
dent on such land, or occupant there-
of residing in the neighborhood of
said 4and,i and no such right shall per-
manently attach until all payments
therefor are made. The annual in-
stallments shall be paid to the re-
ceiver of the local land office of the
district in which the land is situated,
and failure to make any two payments
when due shall render the entry sub-
ject to cancellation, with the forfei-
ture of all rights under this act, as
well as any mone3rs already paid there<*
on. All moneya received from the
above sources shall be paid into the
reclamation fund. Begisters and re-
ceivers shall be allowed the usual
commissions on all mone3rs paid for
lands entered under this act.

Sec. 6. That the Secretary of the
Interior is hereby authorized and
directed to use the reclamation fund
for the operation and maintenance
of all reservoirs and irrigatioji works
constructed under the provisions of
this act: Provided, That when the
jiayments required by this act are
made for the major portion of the
lands irrigated from the waters of
any of the works herein provided for,
then the management and operation of
fiuch irrigation works shall phss to the
owners of the lands irrigated thereby,
to be maintained at their expense
under such form of organisation and
under such rules and regulations as
may be acceptable to the Secretary of
the Interior: Provided, That the title
to, and the management and operation
of, the reservoirs and the works neces-
sary for their protection and opera-
tion shall remain in the Government
antil otherwise provided by Congress.

Sec. 7. That where, in carrying out
the provisions of this act, it become-s
necessary, to acquire any rights or

distance from the land is twenty milea
In a direct line.

694

STATUTES.

propertj, the Seeretary of the Interior
is herebj authorized to aequire the
fame for the United States bj pur-
ehaae or bj condemnation under judi-
cial proeees, and to paj from cthe
reelamation fund the sums which may
be needed for that purpose, and it
fhall be the duty of the Attorney-
General of the United States upon
every application of the Secretary
of the Interior, under this act, to cause
proceedings to be commenced for con<
demnation within thirty days from
the receipt of the application at the
Department of Justice.

See. 8. That nothing in this act
•hall be construed as affecting or
intended to affect or to in any way
interfere with the laws of any State
or Territory relating to the control,
appropriation, use, or distribution of
water used in the irrigation, or any
nested right acquired thereunder, and
the Secretary of the Interior, in carry-
ing out the provisions of this act,
shall proceed in conformity with such
laws, and nothing herein shall in any
way affect any right of any State
or of the Federal Government or of
any landowner, appropriator, or user
of water in, to, or from any inter-
state stream or the waters thereof:
Providedf That the right to the use of
water acquired under the provisions
of this act shall be appurtenant to the
land irrigated and beneficial use shaU
be the basis, the measure, and the limit
of the right.

Sec. 9. That it is hereby declared

to be the duty of the Secretary of
the Interior in carrying out the pro-
visions of this act so &r as the same
may be practicable and subject to the
existence of feasible irrigation pro-
jects, to expend the major portion of
the funds arising from the sale of
public lands within each State and
Territory hereinbefore named for the
benefit of arid and semi-arid lands
within the limits of such State or Ter-
ritory; Provided^ That the secretary
may temporarily use such portion of
said funds for the benefit of arid or
semi-arid lands in any particular State
or Territory hereinbefore named as he
may deem ad^-isable, but when so used
the excess .shall be restored to the
fund as soon as practicable, to the
end that ultimately, and in any event,
within each ten-year period after the
passage of this act, the expenditures
for the benefit of the said States and
Territories shall be equalized accord-
ing to the proportions and subject to
the conditions as to practicability and
feasibility aforesaid.

Sec. 10. That the Secretary of the
Interior is hereby authorized to per-
form any and all acts and to niake
such rules and regulations as may be
necessary and proper for the purpose
of carrying the provisions of this act
into full force and effect.

Approved June, 17, 1902.

See, also, in this same connection,
83 Stats. 547, e. 1081, concerning
homestead entries under this act; 33
Stats. 352, 359; 34 Stats. 259.

The first work completed, under this act is the Truckee-Carson
project in Nevada. In the report of 1903-04, of A. E. Chandler,
then State Engineer of Nevada, it is said: '*To obviate possible fu-
ture complications agreements have been secured from all but four
or five of the owners of these lands, exclusive of the Indians, where-
by the United States government agrees to supply from the canals
to be constructed by it, free of cost, water for the irrigation of all
land now under cultivation and irrigation, and in consideration
therefor the landowners agree to convey all the water rights owned
or claimed by them, together with all dams and ditches for the di-
version of water, to the United States." In May, 1907, in Fallon
Sink lands, a dispute arose over the effect of these contracts, and
» was referred to Washington for settlement.

FEDERAL STATUTES. 695

Irrigation Xnyestigatioii. — Congress has frequently appro-
priated money for irrigation reports and investigations. See 25
Statfl. 618, 619, 526, 960 ; 26 Stats. 504, 526 ; 27 Stats. 74, 76, 734,
741 ; 28 Stats. 264, 271, 727, 735 ; 30 Statq. 330, 335, 947, 953 ; 31
Stats. 191, 199, 200, 922, 936 ; 32 Stats. 286, 302, 1147, 1165 ; 33
State. 276, 294, 861, 882 ; also A. C. Feb. 14, 1907.

Congress hos provided for irrigation by Indians on reservations.
31 State. 1058, 1075 ; 33 Stats. 1048, 1060. Questions concerning
righte of Indians also involve treaties.

The PubHc Survey.— The only statutory authority for the
meandering of any stream or body of water is to be found in the
first paragraph section 2395, the second paragraph of section 2396.
sections 2399 and 2407, of the Revised Statutes of the United
States, and the Act of October 1, 1890 (26 State. 650). Further
rules appear in the ** Manual of Instructions" of the Division of
Public Surveys of the General Land Office.

MiflcellaneouB.

25 Stats. 505, par. 4, 1 Supp. Rev. Stats. 626 {1888) .

25 Stats. 939, par. 4, 1 Supp. Rev. Stats. 698 {1889).

26 Stats. 371, par. 4, 1 Supp. Rev. Stats. 791, 792 {1891).

29 Stats. 599, 2 Supp. Rev. Stats. 563 {1897).

32 Stats, at Large, 677, 704. Concerning Philippines. **Bene-
• ficial use shall be the basis, the measure, and the limit of all righte
to water in said islands." A common phrase in the States reject-
ing riparian righte in toto (page 697). Sections 2339 and 2340,
Revised Statutes are substantially enacted for the Philippines (page
704).

696 STATUTES.

CALIFORNIA.

Constitution. — Constitution, article XIV, section 1. **The use of
all water now appropriated, or that may hereafter be appropriiEited.
for sale, rental, or distribution, is hereby declared to be a public
use, and subject to the regulation and control of the State, in the
manner to be prescribed by law; provided, that the rates or com-
pensation to be collected by any person, company or corporation
in this State for the use of water supplied to any city and county,
or city or town, or the inhabitants thereof, shall be fixed, annually,
by the board of supervisors, or city and county, or city or town
council, or other governing body of such city and county, or city or
town, by ordinance or othenyise, in the manner that other ordi-
nances or legislative acts or resolutions fire passed by such body,
and shall continue in force for one year and no longer. Such
ordinances or resolutions shall be passed in the month of February
of each year, and take effect on the first day of July thereafter.
Any board or body failing to pass the necessary ordinances or reso-
lutions fixing water rates, where necessary, within such time, shall
be subject to peremptory process to compel action at the suit of any '
party interested, and shall be liable to such further processes and
penalties as the legislature may prescribe. Any person, company or
corporation collecting water rates in any city and county, or city or
town in this State, otherwise than as so established, shall forfeit
the franchises and waterworks of such person, company or corpora-
tion to the city and county, or city or town where the same are col-
lected, for the public use.*'

Section 2. **The right to collect rates or compensation for the
use of water supplied to any county, city and county, or town, or the
inhabitants thereof, is a franchise, and cannot be exercised except
by authority of and in the manner prescribed by law."

Constitution, article I, section 14. *' Private property shall not
be taken or damaged for public use without just compensation hav-
ing been first made to, or paid into court, for the owner, and no
right of way shall be appropriated to the use of any corporation
other than municipal until full compensation therefor be first made

CALIFORNIA. 697

in money or ascertained and paid into court for the owner, ir-
respective of any benefit from any improvement proposed by such
corporation, which compensation shall be ascertained by a jury,
unless a jury be waived, as in other civil cases in a court of record,
as shall be prescribed by law. "

Constitution, article I, section 13, **No person shall be ... .
deprived of life, liberty or property without due process of law. ' '

Civil Code, Division Second, Title Vm— Water Bights.^— Sfec

tion 1410. Eights to Water may he Acquired by Appropriation.
The right to the use of running water flowing in a river or stream,
or down a canyon or ravine, may be acquired by appropriation.
En. March 21, 1872. ^

Section 1411. Appropriation must be for a Useful Purpose.
The appropriation must be for some useful or beneficial purpose,
and when the appropriator or his successor in interest ceases to use
it for such a purpose, the right ceases. En. March 21, 1872.

Section 1412. Point of Diversion may be Changed. 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. En. March 21, 1872

Section 1413. Water may be Turned into Natural Channels.
The water appropriated may be turned into the channel of another
stream and mingled with its water, and then reclaimed ; but in re-
claiming it the water already appropriated by another must not be
diminished. En. March 21, 1872.

Section 1414. First in Time,' First in Right. As between ap-
propriators, the one first in time is the first in right. En. March
21, 1872.

Section 1415. Notice of Appropriation. A person desiring to
appropriate water must post a notice, in writing, in a conspicuous
place at the point of intended diversion, stating therein:

1. That he claims the water there flowing to the extent of (giv-
ing the number) inches measured under a four-inch pressure;

2. The purposes for which he claims it, and the place of in-
tended use ;

1 Quoted in full.

698 STATUTES.

•S, The means by which he intends to divert it, and the size of the
flume, ditch, pipe, or aqueduct in which he intends to divert it.

A copy of the notice must, within ten days after it is posted, be
recorded in the office of the recorder of the county in which it is
posted.

After filing such copy for record, the place of intended diversion
or the place of intended use or the means by which it is intended
to divert the water, may be changed by the person posting said no-
tice or his assigns, if others are not injured by such change. This
provision' applies to notices already filed as well as to notices here-
after filed. En. March 21, 1872. Amd. 1903, 361.

Section 1416, Work on Water Rights. Within sixty days after
the notice is posted, the claimant must commence the excavation
or construction of the works in which he intends to divert the water,
or the survey, road or trail building, necessarily incident thereto,
and must prosecute the work diligently and uninterruptedly to
completion, unless temporarily interrupted by snows or rain; pro-
vided, that if the erection of a dam has been recommended by the
California debris commission at or near the place where it is in-
tended to divert the water, the claimant shall have sixty days after
the completion of such dam in which to commence the excavation
or construction of the works in which he intends to divert the water.
En. March 21, 1872. Amd. 1895, 70; 1903, 396.

[By an amendment in statutes of 1907, chapter 429, the follow-
ing was added :] ''And provided further, that if it shall be necessary,
by proceedings in eminent domain, to acquire water rights held
by adverse riparian owners or to acquire sites for dams or power
plants at the point of intended diversion or the point of intended
use, as described in the notice of. appropriation of said water, or
if there shall be conflicting claims to the waters so appropriated,
then the party so appropriating, or his assigns, shall have sixty
days after the determination of legal proceedings by final judgment
in which to conmience to excavate or construct the works in which
he intends to divert the water as provided in this section; and
provided further, that if suits for such purpose are not already
pending at the. date of the passage of this act, they shall be com-
menced within sixty days after this act takes effect, and as to
future appropriations of water, within sixty days after notice of
such appropriation is posted as required by law, and such proceed-

CALIFORNIA. 699

ings shall be prosecuted diligently to final judgment; but nothing
in this act shall be construed to revive or renew appropriations of
water heretofore made which have been abandoned and lost, as
against subsequent claimants who have complied with this act."

Section 1417. Completion Defined, By ** completion" is meant
conducting the waters to the place of intended. use. En. March
21, 1872.

Section 1418. Doctrine of Relation Applied. By a compliance
with the above rules the claimant's right to the use of the water «
relates back to the time the notice was posted. En. March 21, 1872.

Section 1419. Forfeiture. A failure to comply with such rules
deprives the claimants of the right to the use of the water as against
a subsequent claimant who complies therewith. En. March 21,

1872.

Section 1420. Rights of Present Claimant. Persons who have
heretofore claimed the right to water, and who have not constructed
works in which to divert it, and who have not divert ed nor applied
it to some useful purpose, must, after this title takes effect, and
within twenty days thereafter, proceed as in this title provided, or
their right ceases. En. March 21, 1872.

Section 1421. Recorder to Keep Book in Which to Record No-
tices. The recorder of each county must keep a book, in which
he must record the notices provided for in this title. En. March 21,
1872.

Section 1422. Title not to Affect Rights of Riparian Proprietors.
If the place of intended diversion or any part of the route of in-
tended conveyance of water so claimed, be within, and a part of,
any national park, forest reservation, or other public reservation,
and be so shown in the notice of appropriation of said water, then
the claimant shall have sixty days, after the grant of authority
to occupy and use such park or reservation for such intended pur-
pose, within which to commence the excavation or construction of
said works; provided that within sixty days after the posting of
said notice of appropriation, as provided in section 1415 of the
Civil Cod6, the claimant shall in good faith commence (and there-
after diligently and continuously, except wh#n temporarily inter-
rupted by snow or rain, prosecute to completion) such surveys and
other work as under the regulations governing such park or reser-

700

STATUTES.

vations, may be required as preliminary to, or for use with, an ap-
plication for such authority; and provided also that the claimant
shall in good faith on completion of said survey and preliminary
work, apply to the officer, board, or body, having charge of such
park or reservation, for such authority, and shall thereafter, prose-
cute said application with reasonable diligence. En. March 21,
1872. Rep. 1887, 114. En. 1903, p. 397.

Section 1422 formerly read as fol-
lows:

*'The rights of riparian proprietors
are not affected by the provisions of
this title.*'

In the Session of 1887 (Stats., p.
114), the year foUowing the decision
of Lux V. Haggin, section 1422 was
repeajed with the proviso ''that the
repeal of this section shaU not in any
way interfere with any rights already
vested.'' The effect of this repeal
has never been directly passed upon
by the court, but many cases since

then have affirmed the rights of ripar-
ian proprietors, foUowing Lux v.
Haggin. The fact that this repeal has
not disturbed the California doctrine
indicates that Lux v. Haggin is taken
to have upheld riparian rights as much
on constitutional principled as oil sec-
tion 1422 of the code.

In 1903 (Stats., p. 397) a new
section 1422 was added, saying noth-
ing of riparian proprietors. In Deer-
ing's codes, however, the new section
1422 is printed as above.

Civil Code, Title EC— Hydraulic Ittimng.^^— Section 1424, Where
Hydraulic Mining can he Carried on. The business of hydraulic
mining may be carried on within the State of California wherever
and whenever the same can be carried on without material injury
to the navigable streams, or the lands adjacent thereto. En. Stats.
1893, 337.

Section 1425, Meaning of Hydraulic Mining, Hydraulic min-
ing, within the meaning of this title, is mining by means of the ap-
plication of water, under pressure, through a nozzle, against a
natural bank. En. Stats. 1893, 337.

Civil Code, Miscellaneous aectiom.^— Section 842. When two
or more persons are associated by agreement in the use of
a ditch, flume, pipe-line or other conduit for the conveyance
of water, or who are using such ditch, flume, pipe-line or other con-
duit, or any part thereof, for the irrigation of land or for any
other lawful purpose, to the construction of which they or their
grantors have contributed, he is liable to the others for the rea-
sonable expenses of onaintaining and repairing the same, and of

2 Quoted in full.

3 Quoted in full.

CALIFORNIA. 701

distributing such water in proportion to the share to which he is
entitled in the use of the water. En. Stats. 1905, 600. (See Stat-
ute of 1899, infra,)

Section 843. If any one of them neglects, after demand in
writing, to pay his proportion of such expenses, he is liable
therefor in an action for contribution, and in any judgment ob-
tained against him interest from the time of such demand must be
included. The action authorized by this section must be brought
by any or all of the parties who have contributed more than his or
their just proportion of such expenses, and may be joint or several,
and therein plaintiff may recover as costs, reasonable counsel fees,
to be fixed by the court. En. Stats. 1905, 600. (See Statute of
1889, infra,)

Sections concerning water companies are given below.

Code of Civil Procedure.— Section 520. ''In all actions which
may be hereafter brought when an injunction or restraining order
may be applied for to prevent the diversion, diminution or in-
crease of the flow of water in its natural channels, to the ordinary
flow to which the plaintiff claims to be entitled, the court shall
first require due notice of the application to be served upon the
defendant, and upon the hearing thereof, if it be made to appear
to the court that plaintiff is entitled to the injunction, but that
the issuance thereof pending the litigation will entail great dam-
age upon defendant, and that plaintiff will not be greatly dam-
aged by the acts complained of pending the litigation and can
be fully compensated for such damages as he may suffer, the
court may refuse the injunction upon the defendant giving a
bond such as is provided for in section five hundred thirty-two;
and upon the trial the same proceedings shall be had, and with
the same effect as in said section provided." Amd. March 16,
1907, Stats, and Amdts. 1907, p. 342.

Section 532, **.... In all actions pending, or which may
hereafter be brought, when an injunction or restraining order has
been or may be granted or applied for, to prevent the diversion
pending the litigation, of water used or to be used for irrigation
or domestic purposes only, if it be made to appear to the court
that great damage will be suffered by the person enjoined, in
case the injunction is continued, and that the person in whose

702 STATUTES.

behalf it issued can be fully compensated for any damages he '
may suffer by reason of the continuance of the acts enjoined dur-
ing the pendency of the litigation, the court in its discretion;
may dissolve or modify the injunction, upon the person enjoined
giving a bond with sureties to be approved by the judge, and in
such amounts as may be fixed by the court or judge, conditioned
that such enjoined person will pay all damages which the per-
son in whose behalf the injimction issued may suffer by reason
of the continuance, during the litigation, of the acts complained
of. Upon the trial the amount of such damages must be ascer-
tained, and in case judgment is rendered for the person in whose
behalf the injunction was granted, the amount fixed as such
damages must be included in the judgment, together with rea-
sonable attorney's fees. In any suit brought on the bond, the
amount of such damages as fixed in said judgment is conclusive
on the sureties." En. March 11, 1872. Amd. 1887, 241. Amd.
1907, 342.

Section 1238, Eminent Domain, ** Subject to the provisions of
this title, the right of eminent domain may be exercised in behalf
of the following public uses: ....

**3. Public buildings and grounds for the use of any county,
incorporated city, or city and county, village, town or school dis-
tricts, canals, aqueducts, reservoirs, tunnels, flumes, ditches or
pipes for conducting or storing water for the use of the inhabitants
of any county, incorporated city, or city and county, village or
town, or for draining any county, incorporated city, or city and
county, village or town; raising the banks of streams, removing
obstructions therefrom, and widening and deepening or straighten-
ing their channels, roads, streets, and alleys ; public mooring places
for water craft; ....

. **4 paths and roads, either on the surface, elevated, or

depressed, for the use of bicycles, tricycles, motorcycles and other
horseless vehicles, steam, electric and horse railroads, canals,
ditches, dams, pondings, flumes, aqueducts and pipes for irriga-
tion, public transportation, supplying mines and farming neigh-
borhoods with water, and draining and reclaiming lands, and for
floating logs and lumber on streams not navigable.

**5. Roads, tunnels, ditches, flumes, pipes and dumping places
for working mipes; also outlets, natural or otherwise, for the flow,

calipor:nia. 703

deposit, or conduct of tailings or refuse matter from mines; also
an occupancy in common by the owners or possessors of different
mines of any place for the flow, deposit, or conduct of tailings
or refuse matter from their several mines.

**6. Byroads leading from highways to residences, farms, mines,
mills, factories and buildings for operating machinery, or neces-
sary to reach any property used for public purposes

**12. Canals, reservoirs^ dams, ditches, flumes, aqueducts, pipes
and outlets, natural or otherwise, from sources other than a navi-
gable lake, for supplying, storing and discharging water for or
in connection with the operation of machinery for the purposes of
generating and transmitting electricity for the supply of mines,
quarries, railroads, tramways, mills and factories with electric
power; and also for the supplying of electricity to light or heat
mines, quarries, mills, factories, incorporated cities and counties,
villages or towns; and also for furnishing electricity for lighting,
heating or power purposes to individuals or corporations, together
with lands, buildings and all other improvements in or upon which
to erect, install, place, use or operate machinery for the purpase
of generating and transmitting electricity for any of the purposes
or uses above set forth. ....'' Amd. 1907, c. 39.

Section 1240, Eminent Domain. **The private property which
may be taken under this title includes :

1. All real property belonging to any person; ....
4. Property appropriated to public use ; but such property shall
not be taken unless for a more necessary public use than that to
which it has been already appropriated ; . . . .

**6. All rights of way for any and all the purposes mentioned
in section twelve hundred and thirty-eight, and any and all struc-
tures and improvemeiits thereon, and the lands held or used in
connection therewith shall be subject to be connected with, crossed,
or intersected by any other right of way or improvements, or
structures thereon. They shall also be subject to a limited use, in
common with the owner thereof, when necessary; but such uses,
crossings, intersections, and connections shall be made in manner
most compatible with the greatest public benefit and least private
injury; ....

**7. All classes of private property not enumerated may be taken
for public use, when such taking is authorized by law; ....*'
Amd. 1907, c. 271.

704 STTATUTES.

Water Oompanies and Oonsiimen — CSivil Oode.^ (See, also.
Constitution.)

■

Civil Code, section 548. Corporation may Obtain Coniract to
Supply City or Town. No corporation formed to supply any city,
city and county, or town with water must. do so unless previously
authorized by an ordinance of the authorities thereof, or unless
it is done in conformity with a contract entered into between the
city, city and county, or town and the corporation. Contracts so
made are valid and binding in law, but do not take from the city,
city and county, or town the right to regulate the rates for water,
nor must anj" exclusive right be granted. No contract or grant
must be made for a term exceeding fifty years. En. March 21.
1872.

Civil Code, section 549. Water Corporations, Duties, etc. All
corporations formed to* supply water to cities or towns must fur-
nish pure fresh water to the inhabitants thereof, for family uses,
so long as the supply permits, at reasonable rates and without
distinction of persons, upon proper demand therefor; and must
furnish water to the extent of their means, in case of fire or other
great necessity, free of charge. The board of supervisors, or the
proper city or town authorities, may prescribe proper rules relat-
ing to the delivery of water, not inconsistent with the laws of the
State. En. March 21, 1872. Amd. 1873:74, 21 ; 1905, 580.

Civil Code, section 551, Construction of Canal, etc. No canal,
flume, or other appliance for the conducting of water must be so
laid, constructed, or maintained as to obstruct any public highway ;
and every person or corporation owning, maintaining, operating
or using any such canal, flume, or appliance, crossing or running
along any public highway, must construct, maintain, and keep
in repair such bridges across the same as may be necessary to the
safe and convenient use of such highway by the public; and on
failure so to do, the board of supervisors of the county, after seven-
days' notice in writing to said person or corporation, may con-
struct or repair such bridge or bridges, and recover of such per-
son or corporation the amount of the expenditure made in so doing.
En. March 21, 1872. Amd. 1905, 580.

Civil Code, section 552. Right of Purchaser to Use Water for
Irrigating. Whenever any corporation, organized under the laws

4 Quoted in full.

CALIFORNIA. 705

of this State, f umishes water to irrigate lands which said corpora-
tion has sold, the right to the flow and use of said water is and
shall remain a perpetual easement to the land so sold, at such
rates and terms as may be established by said corporation in pur-
suance of law. And whenever any person who is cultivating land,
on the line and within the flow of any ditch owned by such cor-
poration, has been furnished water by it, with which to irrigate
his land, such person shall be entitled to the continued use of said
water, upon the same terms as those who have purchased their
land of the corporation. En. Stats. 1875-76, 77.

Civil Code, section 324, Stock in Irrigation Companies. When-
ever the capital stock of any corporation is divided into shares ; and
certificates therefor are issued, such shares of stock, except as here-
inafter provided, are personal property, and may be transferred
by indorsement by signature of the proprietor, his agent, attorney^
or legal representative, and the delivery of the certificate ; but such
transfer is not valid, except as to the parties thereto, until the same
is so entered upon the books of the corporation as to show the
names of the parties by whom and to whom transferred, the num-
ber of the certificate, the number or designation of the shares,
and the date of the transfer; provided, however, that any cor-
poration organized for, or engaged in the business of selling, dis-
tributing, supplying, or delivering water for irrigation purposes
or for domestic use, may in its by-laws provide that water shall
only be so sold, distributed, supplied, or delivered to owners of
its capital stock, and that such stock shall be appurtenant to cer-
tain lands when the same are described in the certificate issued
therefor; and when such certificate shall be so issued, and a cer-
tified copy of such by-law recorded in the office of the county re-
corder in the county where such lands are situated, the shares
of stock so located on any land shall only be transferred with said
lands, and shall pass as an appurtenance thereto. Whenever any
officer of any corporation shall refuse to make entries upon the
books thereof, or to transfer stock therein, or to issue a certificate
or certificates therefor to the transferee as provided by this and
the next preceding section, such officer shall be subject to a
penalty of four hundred dollars, to be recovered as liquidated
damages, in an action brought against him by the person aggrieved.

Water Biffhto-^S

706 STATUTES.

Water Oompanies and Ooxununen — Statutes.^

STATUTES OF 1880, PAGE 16, DistHbution for IrHgation.
An act authorizing the boards of supervisors of the counties in
which water is sold for the purpose of irrigation to fix the rates at
which water shall be sold. (Approved March 26, 1880; Stats. 1880,
p. 16 [Ban. Ed. 59].)

Section 1. Supervisors to Fix Rates. The boards of super-
visors of the several counties of this State in which water is ap-
propriated, furnished, and sold principally for the purpose of ir-
rigation are hereby authorized and required to fix the maximum
rates at which such water shall be furnished and sold, at a meet-
ing to be held in the month of February of each year; provided,
that in the year eighteen hundred and eighty such rates shall be
fixed at the first meeting after the passage of this act. The rates
so fixed and established shall be in force from and after the first
day of July, after the date of fixing said rates, and shall continue
in force for the period of one year ; provided, that nothing in this
section shall apply to water furnished within the limits of any
incorporated city and county, city, or town.

Section 2, Forfeiture of Franchise, Any person, company, or
corporation collecting rates for water furnished for irrigation in
any county in this State in excess of the rates as provided in sec-
tion one of this act shall forfeit for the public use the franchise
and waterworks of such person, company, or corporation to the
county in which such excessive rates were charged.

Section 3. Action to Enforce Forfeiture, Upon affidavit be-
ing made by any interested party, setting forth that any such com-
pany, person, or corporation has charged rates for water furnished
for irrigating purposes in excess of the rates established by fhe
board of supervisors, the said board of supervisors shall cause the
district attorney to commence an action in the superior court of
the county, within thirty days from the receipt by them of such
affidavit, to enforce the forfeiture of the franchise and water-
works of- such person, company, or corporation.

Section 4, To Compel the Performance of the Duties of Sjuper-
visors. If the board of supervisors fail or neglect to fix the rates,
as provided in section one of this act, or if the board of super-

5 Quoted in fuU.

CALIFORNIA. 707

visors fail or neglect to commence the action provided for in sec-
tion three of this act, as therein provided, any interested person
may commence proceedings to compel the performance of such
duties.

Section 5. Control of Use of Water Prohibited, No person,
company, or corporation selling water for irrigation shall be per-
mitted to exercise any control as to the use of the water after its
delivery to the purchaser.

Section 6, This act shall take effect immediately.

STATUTES OF 1885, PAGE 95, General DistriJmtion. kn
act to regulate and control the sale, rental, and distribution of ap-
*propriated water in this State, other than in any city, city and
county, or town therein, and to secure the rights of way for the con-
veyance of such water to the places of use. (Approved March 12,
1885; 1885, 95; 1897, 49; 1901, 80.)

Section 1. Use of Appropriated Water Public, The use of all
water now appropriated, or that may hereafter be appropriated,
for irrigation, sale, rental, or distribution, is a public use, and the
right to collect rates or compensation 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 su-
pervisors thereof, in the manner prescribed in this act.

Section 2. Supervisors may Fix Bates, The several boards of
supervisors of this State, on petition and notice as provided in sec-
tion 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 such counties, may and
shall sell, rent, or distribute the same.

Section 3, Petition for Fixing Rates: Whenever a petition of
not less than twenty-five inhabitants, who are taxpayers of any
county of this State, shall, in writing, petition the board of super-
visors thereof, to be filed with the clerk of said board, to regulate
and control the rates and compensation to be collected by any per-
son, company, association, corporation, for the sale, rental, or dis-
tribution of any appropriated water, to any of the inhabitants of
such county, and shall in such petition specify the persons, com-
panies, associations, or corporations, or any one or more of them.

708 STATUTES.

whose water rates are therein petitioned to be regulated or con-
trolled, the clerk of such board shall immediately cause such peti-
tion, together with a notice of the time and place of hearing
thereof, to be published in one or more ne^'spapers published in
such county; and if no newspaper be published therein, then shall
cause copies of such petition and notice to be posted in not less
than three public places in such counties and such publication and
notice shall be for not less than four weeks next before the hear-
ing of said petition by said board; such notice to be attached to
said petition shall specify a day of the next regular term of the
session of the said board not less than thirty days after the first
publication or posting thereof, for the hearing of said petition,
which shall impart notice to all such persons, companies, associa-*
tions, and corporations mentioned in such petition, and all persons
interested in the Aiatters 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 peti-
tion, and may conipel such attendance by attachment.

Section 4. Hearing of Petition — Value of Waterworks. At
the hearing of said petition the board of supervisors shall estimate,
as near as may be, the value of the canals, ditches, flumes, water-
chutes, and all other property actually used and useful to the ap-
propriation and furnishing of such water, belonging to and pos-
sessed by each persoA, association, company, or corporation, whose
franchise shall be so regulated and controlled; and shall in like
manner estimate as to each of such persons, companies, associa-
tions, and corporations, their annual reasonable expenses, includ- '
ing the cost of repairs, management, and operating such works;
and, for the purpose of such ascertainment, may require the at-
tendance of persons to give evidence, and the production of papers,
books, and accounts, and may compel the attendance of such per-
sons and the production of papers, books, and accounts, by attach-
ments, if within their respective counties.

Section 5. Rules to he Observed in Fixing Rates, In the reg-
ulation and control of such water rates for each of such persons,
companies, associations, and corporations, such board of supervisors
may establish different rates at which water may and shall be sold,
rented, or distributed, as the case may be ; and may also establish
different rates and compensation for such water so to be furnished
for the several different uses such as mining, irrigating, mechanical,

CALIFORNIA. 709

manufacturing, and domestic, for which such water shall be sup-
plied to such inhabitants, but such rates as to each class shall be
equal and uniform. Said board of supervisors, in fixing such rates,
shall, as near as may be, so adjust them that the net anqual re-
ceipts and profits thereof to the said persons, companies, associa-
tions, and corporations so furnishing such watelr to such inhabit-
ants shall be not less than six nor more than eighteen per cent
upon said value of the canals, ditches, flumes, chutes, and all
other property actually used and useful to the appropriation and
furnishing of such water of each of such persons, companies,
associations, and corporations; but in estimating such net receipts
and profits, the cost of any extensions, enlargements, or other per-
manent improvements of such water rights or waterworks shall
not be included as part of the said expenses of management, re-
pairs, and operating of such works, but when accomplished, may
and shall be included in the present cost and cash value of such
work. In fixing said rates, within the limits aforesaid, at which
water shall be so furnished as to each of such persons, companies,
associations, and corporations, each of said board of supervisors
may likewise take into estimation any and all other facts, circum-
stances, and conditions pertinent thereto, to the end and purpose
that said rates shall be equal, reasonable and just, both to such
persons, companies, associations, and corporations, and to said in-
habitants ; and each such board of supervisors shall designate what
proportion of the rates so fixed shall be for the said annual rea-
sonable expenses of each of such persons, companies, associations
or corporations, and what proportion of the rates so fixed shall be
for the said net annual receipts and profits to such persons, com-
panies, associations, or corporations. 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 after they shall
have been abrogated by such board of supervisors, 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 furnish, 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

710 STATUTES.

■

thereof. (Amendment approved February 28, 1901; Stats. 1901.
p. 80.)

Section 6. Changing Rates. At any time after the establish-
ment of such water rates by any board of supervisors of this State,
the same may be established anew, or abrogated in whole or in
part by such board, to take eflfect not less than one year next after
such first establishment, but subject to said limitation of one year,
to take eflfect immediately in the following manner: Upon the
written petition of inhabitants as hereinbefore provided, or upon
the written petition of any of the persons, companies, associations
or corporations, the rates and compensations of whose appropriated
waters have already been fixed and regulated, and are still sub-
ject to «uch regulation by any such board of supervisors of this
State, as in this act provided; and upon the like publication or
pasting of such petition and notice, and for the like period of time
as hereinbefore provided, such board of supervisors shall proceed
anew, in the manner hereinbefore provided, to fix and establish
the water rates for such person, company, association or corpora-
tion, or any number of them, in the same manner as if such rates
had not been previously established, and may, upon petition of such
inhabitants, but not otherwise, abrogate any and all existing rates
theretofore established by such board. All water rates, when fixed
and established as herein provided, shall be in force and effect
until established anew or abrogated, as provided in this act.

Section 7. Record of Rates to be Published, Each board of
supervisors of this State, when fixing and establishing, or fixing
and establishing anew, or abolishing any previously established
water rates, as hereinbefore provided, shall cause a record to be
made thereof in the records of such board, and cause the same to
be published or posted in the manner and for the time required for
the publication or posting of said petitions and notices.

Section 8, Water to be Furnished at Rates Fixed. Any and
all persons, companies, associations, or corporations, furnishing
for sale, rental, or distribution, any appropriated waters to the
inhabitants of any county or counties of this State (other than
to the inhabitants of any city, city and county, or town, therein),
shall so sell, rent, or distribute such waters at rates not exceed-
ing the established rates fixed and regulated therefor by the boards
of supervisors, of such counties, or as fixed and established by such

CALIPOBNIA. 711

person, company, association, or corporation, as provided in this
act.

Section 9, Penalty for Excessive Charges. If any person, com-
pany, association, or corporation, whose water rates for any county
of this State have been fixed and regulated by a board of super-
visors, as in this act provided, and while such rates are in force,
shall collect for any appropriated water, furnished to any in-
habitant of such county water rates in excess of such established
rates, shall be liable, in an action by any such inhabitant so ag-
grieved, to a recovery of the whole rate so collected, together with
actual damages sustained by such inhabitant, with costs of suit.

Section 10. To Sell to All Persons. Every person, company,
association, and corporation, having in any county in the State
(other than in any city, city and county, or town therein) ap-
propriated waters for sale, rental, or distribution, to the inhabi-
tants of such county, upon demand therefor, and tender in money
of such established water rates, shall be obligated to sell, rent
or distribute 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 extent of
the actual supply of such appropriated waters of such person,
company, association or corporation, for. such purposes. If any
person, company, association or corporations, 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, shall
be liable in damages to the extent of the actual injury sustained
by the person or party making such demand and tender, to be re-
covered, with costs.

Section 11. Condemning Land for Right of Way, Whenever
any person, company, association or corporation shall have ac-
quired the right to appropriate water, or shall have acquired the
right to appropriate such water in this State, such person, com-
pany, association, or corporation, may proceed to condemn the land
and premises necessary to such right of way, under the provisions
of title VII 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 condemnation and taking of property for the public
uses, shall be applicable to the provisions of this act.

712 STATUTES.

Section liy^* Contracts in Existence^ haw Affected, Nothing
in this act contained shall be construed to prohibit or invalidate
any contract already made, or which shall hereafter be made,
by or with any of the persons, companies, associations, or corpora-
tions described in section two of this act, relating to the sale,
rental or distribution of water, or to the sale or rental of ease-
ments and servitudes of the right to the flow and use of water;
nor to prohibit or interfere with the vesting of rights under any
such contract. (New section added March 2, 1897; Stats. 1897,
49.)

Section 12, This act shall take effect and be in force from and
after its passage. ^

STATUTES OF 1901, PAGE 331. Contracts with Distributing
Company, An act declaring upon what terms contracts between
persons, companies, associations, or corporations furnishing water
for irrigation to the consumers of such water shall be valid, and to
provide that such contracts shall be deemed based upon sufficient
consideration. (Approved March 16, 1901. Stats. 1901, p. 331.)

•

Section 1. It is and shall be lawful for any person, company,
association, or corporation, furnishing for sale, rental, or distri-
bution any appropriated waters for purposes of irrigation, to enter
into contracts with individual consumers of such water or with
bodies of such consumers, relating to the sale, rental, or distribu-
tion of such water, or any thereof, which contracts, subject to the
restrictions hereinafter declared, shall be valid to all intents and
purposes, any law or rule to the contrary notwithstanding.

Section 2, No such contract shall provide for the sale, rental,
or distribution of any such water at any rate exceeding the estab-
lished rates fixed and regulated therefor by the board of super-
visors of the proper counties, or fixed and established bj' such per-
son, company, association, or corporation, as provided by law.

Section 3, Nothing in this act contained shall be construed to
authorize or make valid any contract not made for a valuable con-
sideration ; but an agreement on the part of such person, company,
association, or corporation to sell, rent, or distribute any water
to a consumer, without payment in advance therefor, or upon any
other terms to which such consumer is not otherwise lawfully en-
titled, shall be deemed and taken to be a valuable and sufficient
consideration for such contract.

CALIFORNIA. 713

Section 4, Nothing in this act contained shall affect any con-
tract made prior to the time that the board of supervisors fix and
establish the rates and regulations for and under which water shall
be sold and supplied.

Section 5, This act shall take effect and be in force from and
after its passage.

Water.:— S^a^w^e* of 1877-78, page 195, concerning

waste of water from artesian wells. A similar statute was held
unconstitutional in Huber v. Merkel, 117 Wis. 355, 98 Am. St.
Rep. 933, 94 N. W. 354, which case is, however, disapproved in
Freund's Police Power, section (425?). Another similar statute
was enacted by the legislature in 1907, and follows in full.

Statutes of 1907, Page 122, Ciiapter 101,^ An act to pre-
vent the waste and flow of water from artesian wells, and pre-
scribing penalties therefor, and defining waste and artesian wells.
(Approved March 6, 1907.)

Section 1, Any artesian well which is not capped, equipped or
furnished with such mechanical appliance as will readily and ef-
fectively arrest and prevent the flow of any water from such well,
is hereby declared to be a public nuisance. The owner, tenant or
occupant of the land upon which such well is situated^ who causes,
permits or suffers such public nuisance, or suffers or permits it
to remain or continue, is guilty of a misdemeanor ; and any person
owning, possessing or occup3Qng any land upon which is situated
an artesian well, who causes, suffers, or permits the- water to un-
necessarily flow from such well, or to go to waste, is guilty of a mis-
demeanor.

Section 2. For the purposes of this act, an artesian well is
defined to be any artificial hole made in the ground through which
water naturally flows from subterranean sources to the surface of
the ground for any length of time.

Section 3, Waste is defined, 'for the purposes of this act to be
the causing, suffering or permitting any water flowing from an
artesian well, to run into any river, creek or other natural water-
course or channel, or into any bay or pond (unless used thereafter
for the beneficial purpose of irrigation of land or domestic use),
or into any street, road or highway, or upon the land of any person,

« Quoted in full.

714 STATUTES.

or upon the public lands of the United States or of the State of
California, unless it be used thereon for the beneficial purposes
of the irrigation thereof or for domestic use or the propagation of
fish. The use of any water fiowing from an artesian well for the
irrigation of land, whenever over ten per cent of the water received
on such land for irrigation is allowed to escape therefrom, is also
hereby declared to be waste within the meaning of this act.

Section 4. Each day's continuance of such waste shall constitute
a new offense under this act.

Section 5. Any person violating any of the provisions of this
act shall, for each offense, upon conviction thereof, be punished
by a fine of not less than $25.00 and not more than $500.00, or
by imprisonment in the county jail for a period of not more
than six months, or by both such fine and imprisonment. All
prosecutions for the violation of any of the provisions of this act
shall be instituted in the justice's court of the county in which
such well is situated. Any fine imposed under the provisions of
this act may be collected as in other criminal cases, and the justice
may also issue an execution upon the judgment therein rendered,
and the same may be enforced and collected as in civil cases.

Section 6, All acts and parts of acts in conflict with this act.
are hereby repealed.

Section 7. This act shall take effect immediately.
This act has been held constitutional. Ex parte Elam (Cal.
App.), 91 Pac. 811.

Irrigation District Statutes. — ^The first legislation in this line
was the Statute of 1871-72, p. 945. This is probably repealed by
the Act of 1897. (See Gen. Laws, p. 498.) The first elaborate
act for the formation of irrigation districts was the Wright Act of
1887, p. 29. All previous acts were repealed by the Act of .1897,
p. 254. (Gen. Laws, p. 498.) The present law is briefly as fol-
lows :

Act 1897, pp. 254, 394. Am. 1901, p. 815. Supplemented
1903, p. 3. Am. 1905, c. 33. Am. 1907, c. 298.

Purpose. To allow organization by owners of land susceptible
of one system of irrigation.

Proceedings to Organize. Petition by owners to board of super-
visors; published. Hearing before supervisors, with right of ob-

CALIFOBNTA. 715

jectpra to appeal to superior court. .Five subdivisions formed by
order of supervisors, one director to be elected by each subdivi-
sion.

Election held to obtain final assent of owners and to elect offi-
cers. Supervisors declare the district duly organized, if carried,
and copy of this order recorded.

Officers. Board of five (or in some cases, three) directors, as-
sessor, tax collector, treasurer.

Directors, Classified by length of tenure (some two, some four
years; sec. 20.) Must meet monthly. Records open for inspec-
tion. Must publish annual reports. Conti'ol and carry on the
irrigation works. Powers enumerated in detail. Director must
be a resident and freeholder of the district.

Froperty, District may acquire water rights by condemnation
or purchase. (Sec. 15.) Title to property is in the district in
trust. (Sec. 15. See Merchants* Bank v. Escondido etc. Irr. Dist.,
144 Cal. 329.) Is given all waters belonging to the State within
the district. (Sees. 53-56.) Has right of way for canals, etc.,
but otherwise must not interfere with navigation or mining (sec.
64) or with existing vested rights. (Sec. 65.)

Operations, Controlled by directors, who may establish by-laws
and regulations, to be printed and distributed. Is in public ser-
vice. Water shall be apportioned in proportion to the money last
assessed to owner for district purposes. In time of scarcity, water
apportioned between districts by a board of water conmiissioners
consisting of the chairmen of the boards of directors of all dis-
tricts affected. (Sec. 62.) May contract for construction work.
(Sees: 53-56.) May lease the works. Must advertise for bids.
Lease must not be for longer than twenty-five years. Forfeited
for non-payment of rent for ninety days. (Sec. 100.) See, also, ^
Stats. 1893, p. 295.

Election. (Sees. 19-28.) Every two years. Vacancies filled by
board of directors. Detailed provisions governing elections.

Bonds. May issue bonds. (Sec. 30.) First submitted at an
election. Issued in ten series. May assess to pay interest and
principal. Bonds may be redeemed. (Sec. 52.) Validity of
bonds and organization may be tested and confirmed in suit in
superior court, on behalf of district or individual, and has the
effect of a proceeding in rem, summons being published. (Sec.

716 STATUTES.

68.) Bonded debt may be reduced. Must be balloted on. Must
have consent of bondholders to take up outstanding bonds. (Sec.
98 et seq.) See Stats. 1891, p. 53.

Assessn^ents, All real property may be assessed to raise funds.
(Sec. 33.) If voted at polls, assessor must perform duties. (Pre-
scribed in detail.) Directors act as board of equalization. After
property duly assessed, directors must levy the assessment. County
officials may act if district officials refuse to assess and levy when
needed. The assessment is a lien on the property assessed. De-
linquent notice, delinquent sale, and redemption after sale pro-
vided for in detail. Redemption must be within twelve months.

Inclusion and Exclusion of Land After Organization. Land
may be excluded. Consent of bondholders or decree of. court re-
quired. If excluded, is released from liens thereon. (Sees. 74-78.)
Land may be included. Petition. Ballot. (Sec. 85 et seq.)

Saving Clauses. Not affect navigation or mining except to
give right of way for canals, etc. (Sec. 64.) Not affect existing
rights. (Sec. 65.) Not affect existing districts. (Sec. 109.)

Dissolution, (Stats. 1903, p. 3.) Petition to board of . directors.
Statement made of assets and indebtedness and plan of settle-
ment. Election thereon, which must be carried by two-thirds vote.
Directors then petition superior court. Summons published. Has
effect of a proceeding in rem, Corporieition under general laws
may take over the property. Decree remdered settling rights
of creditors. When all settled the court shall enter a final decree
declaring district dissolved.

Drainage, Districts may provide for drainage. Stats. W07,
c. 298.

■

Statutes for the formation of irrigation districts based on the
original Wright Act are in force in most of the Western States.
Text, section 429.

See Statutes of 1907, page 16, concerning levee districts.

Penal OodeJ — Section 347, Willfully Poisoning Food, Medi-
cine, or Water, Every person who willfully mingles any poison
with any food, drink, or medicine, with intent that the same shall
be takeil by any human being, to his injury, and every person
who willfully poisons any spring, well, or reservoir^ of water, is

7 Quoted in full.

CALIFORNIA. 717

punishable by imprisomnent in the State prison for a tetm not
less than one nor more than ten years. En. February 14, 1872.

Section 374/ Putting Dead Animals in Streets, Rivers, etc.
Every person who puts the carcass of any dead animal, or the
oflPal from any slaughter-pen, corral, or butcher-shop, into any
river, creek, pond, reservoir, streajn, street, alley, public highway,
or road in common use, or who attempts to destroy the same by
fire within one-fourth of a mile of any city, town, or village, except
it be in a crematory, the construction and operation of which is
satisfactory to the board of health of such city, town, or village ;
and any person who puts any water-closet or privy, or the carcass
of any dead animal, or any oflPal of any kind, in or upon the bor-
ders of any -stream, pond, lake or reservoir from which water is
drawn for the supply of any portion, of the inhabitants of this
state, so that the drainage of such water-closet, privy, carcass, or
oflfal may be taken up by or in such stream, pond, lake, or reservoir ;
or who allows any water-closet, or privy, or carcass of any dead
animal, or any offal of any kind, to remain in or upon the borders
of any such stream, pond, lake, or reservoir within the boundaries
of any land owned or occupied by him, so that the drainage from
any such water-closet, privy, carcass, or offal may be taken up by
or in such stream, pond, lake, or reservoir ; or who keeps any horses,
mules, cattle, swine, sheep, or livestock of any kind, penned, cor-
ralled, or housed on, over, or on the borders of aiiy such stream,
pond, lake, or reservoir, so that the waters thereof become pol-
luted by reason thereof; or who bathes in any such stream, pond,
lake, or reservoir; or who by any other means, fouls or pollutes
th« waters of any such stream, pond, lake, or reservoir; is guilty
of a misdemeanor, and upon conviction thereof shall be punished
as prescribed in section three hundred and seventy-seven. En.
February 14, 1872. Amd. 1875-76, 111 ; 1893, 66 ; 1905, 767 ; Amd.
1907, 73.

Section 420. Preventing Person from Entering Upon Public
Lands. Every person who unlawfully prevents, hinders, or ob-
structs any person from peaceably entering upon or establishing
a settlement or residence on any tract of public land of the United
States within the State of California, subject to settlement or entry
under any of the public land laws of the United States ; or who un-
lawfully hinders, prevents, or obstructs free passage over or

718 STATUTES.

through the public lands of the United States within the State of
California, for the purpose of entry, settlement, or residence, as
aforesaid, is guilty of a misdemeanor. En. Stats. 1877-78, 117;
Rep. Stats. 1880, 1 ; En. Stats. 1905, 675.

Section 499, Stealing Water, Every person who, with intent to
injure or defraud, connects or causes to be connected, any pipe,
tube, or other instrument, with any main, service-pipe, or other
pipe, or conduit or flume for conducting water, for the purpose
of taking water from such main, service-pipe, conduit or flume,
without the knowledge of the owner thereof, and with intent to
evade payment thereof is guilty of a misdemeanor. En. February
14, 1872; Cal. Itep. Cit. 66, 215.

Section 592. Taking Water from or Obstructing Cancels. Every
person who shall without authority of the owner or managing
agent, and with intent to defraud, take water from any canal
ditch, flume, or reservoir, used for the purpose of holding or con-
vejdng water for manufacturing, agricultural, mining, irrigating
or generation of power or domestic uses, or who shall, without like
authority, raise, lower, or otherwise disturb any gate or other
apparatus thereof, used for the control or measurement of water, or
who shall empty or place, or cause to be emptied or placed, into anv
such canal, ditch, flume, or reservoir, any rubbish, filth, or ob-
struction to the free flow of the water, is guilty of a misde-
meanor. En. 1877-78. Amd. 1899, 146.

Section 607. Destroying or Injuring Bridges, Dams, etc. Every
person who willfully and maliciously cuts, breaks, injures, or de-
stroys any bridge^ dam, canal, flume, aqueduct, levee, embankment,
reservoir, or other structure erected to create hydraulic power,
or to drain or reclaim any swamp and overflowed tide or marsh
land, or to store or conduct water for mining, manufacturing,
reclamation, or agricultural purposes, or for the supply of the
inhabitants of any city or town, or any embankment necessary
to the same, or either of them, or willfully or maliciously makes,
or causes to be made, any aperture in such dam, canal, flume,
aqueduct, reservoir, embankment, levee, or structure, with intent
to injure or destroy the same; or draws up, cuts, or injures any
piles fixed in the ground for the purpose of securing any sea-bank,
or seawall, or any dock, quay> or jetty, lock, or seawall ; or who,
between the first day of October and the fifteenth day of April

CALIFORNIA. 719

of each year, plows up or loosens the soil in the bed or on the
sides of any natural watercourse or channel, without removing such
soil within twenty-four hours from such watercourse or channel;
or who, between the fifteenth day of April and the first day of
October of each year, shall plow up or loosen the soil in the bed or
on the sides of such natural watercourse or channel, and shall not
remove therefrom the soil so plowed up or loosened before the first
day of October next thereafter, is guilty of a misdemeanor, and
upon conviction, punishable by a fine not less than one hundred
dollars and not exceeding one thousand dollars, or by imprisonment
in the county jail not exceeding two years, or by both; provided,
that nothing in this section shall be construed so as to in any man-
ner prohibit aijy person from digging or removing soil from any
such watercourse or channel, for the purpose of mining. En.
February 14, 1872. Amd. 1880, 36.

Section 629. Screen Over Mill-race, Pipe, etc.; Penalty; Dis-
position of Fines. Any person, company, or corporation, owning,
in whole or in part, or leasing, operating, or having in charge any
mill-race, irrigating ditch, pipe, flume, or canal, taking or receiv-
ing its waters from any river, creek, stream, or lake in which fish
have been placed, or may exist, shall put, or cause to be placed
and maintained, over the inlet of such pipe, flume, ditch, canal, or
mill-race, a screen of such construction and fineness, strength and
quality as shall prevent any such fish from entering such ditch,
pipe, flume, canal, or mill-race, when required to do so by the State
board of fish commissioners. Any person, company, or corporation
violating any of the provisions of this section, or who shall neglect
or refuse to put up or maintain such screen, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be punished by
a fine of not less than twenty dollars or imprisoned in thje county
jail of the county in. which the conviction shall be had not less
than ten days, or by both such fine and imprisonment; and all
fines imposed and collected for violation of any of the provisions
of this section shall be paid into the State treasury to the credit
of the *'Fish Commission Fund"; provided, that the continuance
from day to day of the neglect or refusal, after notification in writ-
ing by the State board of fish commissioners, shall constitute a
separate offense for each day. En. February 14, 1872. Rep. 1883,
82. En. Stats, 1895, 260. Amd. 1903, 24; 1905, 187. Cal. Rep.
Cit. 77, 32.

720 STATUTES.

STATUTES OF 1907, CHAPTER 492fi An act for the preaerva.
tion of the public health of the people*of the State of California, and
empowering the State board of health to enforce its provisions, and
providing penalties for the violation thereof. (Approved March
23, 1907.)

Section 1, This act shall be known as the Public Health Act
and its provisions are to be liberally construed with a view
to effect its purpose of preventing by uniform measures, the
spread of contagious, infectious and communicable diseases and
to preserve and promote the health of the people of the State.
Its provisions are not intended to repeal pr supersede any stat-
utes of the State now in force, which are promotive of the general
health and not in conflict with or repugnant to its provisions,
but they shall be deemed supplemental to such statutes ; and where
the provisions of this act are not in conflict with and repugnant
to such statutes, they shall be construed consistently therewith,
and as continuations thereof.

Section 2, It shall be unlawful to discharge or deposit, or caui^
or suffer to be discharged or deposited, any sewage, garbage, fecu-
lent matter, offal, refuse, filth, or any animal, mineral, or vege-
table matter or substance, offensivt, injurious, or dangerous to
health, in any springs, streams, rivers, lakes, wells or other waters
used or intended to be used for human or animal consumption;
or to discharge or deposit, oi* cause or suffer to be discharged or
deposited, any such offensive, injurious or dangerous matter or
substance upon the land or place adjoining such waters so as to
cause or suffer such matter or substance to flow or be emptied or
drained into such waters.

Section 3, It shall be unlawful to erect, construct, excavate, or
maintain, or cause to be erected, constructed, excavated, or main-
tained, any privy, vault, cesspool, sewer pipes or conduits, or other
pipes or conduits, for the discharge of impure waters, gas, vapors,
oils, acids, tar, or other matter or substance offensive, injurious,
or dangerous to health, whereby any part of such matter or sub-
stance shall empty, flow, seep, drain, condense or otherwise pol-
lute or affect any of such waters so intended for human or animal
use or consumption; or to erect or maintain any permanent or
-temporary house, camp, or tent, so near to such springs, streams,

8 Quoted \A part relating to waters.

CALIFORNIA. 721

rivers, lakes, or other sources of water supply, as to cause or suf-
fer the drainage, seepage, or flow of impure waters, or any other
liquids, or the discharge or deposit therefrom, of any animal, min-
eral, or vegetable matter, to corrupt or pollute such waters.

Section 4. It shall be unlawful to cause or permit any horses,
cattle, sheep, swine, poultry or any kind of livestock or domestic
animals, to pollute the waters, or tributaries of such waters, used
or intended for drinking purposes by any portion of the inhabit-
ants of this State.

Section 5. No person shall bathe or wash clothes in any spring,
stream, river, lake, reservoir, well or other waters which are used
or intended for drinking purposes by the inhabitants of the vicin-
age or of any city, city and county, or town, of this State.

Section 6, Ice offered or intended for public use or consump-
tion shall be kept or stored in clean places free from all filth, offal,
refuse, and polluted waters, and separate and removed from con-
tact with animal- or vegetable matter, and not in proximity to any
cesspool, privy, vault, or sewer, nor in places where such ice may be
subject to contamination from, or the action of, acids, oils, noxious,
offensive, or injurious gases, smoke or vapors, and all ice kept or
stored in violation of this section shall be deemed polluted ice and
not fit for human consumj^tion ; and it shall be unlawful to sell,
offer for sale, or store for sale such polluted ice.

Political Code. — Section 2349 et seq. Navigable rivers.

Section 2737. Ditches on highways.

Section 3446 et seq. Reclamation districts.

Section 3486, Occupants of land on hanks of stream liable for
damages, when, "Any person owning or occupying lands upon the
banks of any stream where the lands lying back of such Mi^ani
are lower than the bank thereof, is responsible for all damages
which may be sustained by the owners or occupants of lower lands
by reason of any cut or embrasure made in the bank of such stream
by the owner or occupant of the bank."

Section 3467. Proof in mitigation of damages. "If such cuts
were made for the purpose of irrigation, and headgates and cul-
verts have been made which competent persons consider sufiScient
to restrain the water, and where great diligence has been made to

Water Rights— 46

722 STATUTES.

prevent damages, thfese facts may be pleaded and proved, in mitiga-
tion of damages."

Section 3908. Month of creek, etc, defined, **The mouth of
a creek, river or slough which empties into another creek, river
or slough, is the point where the middle of the channel intersects/'

Section 4042 (En. 1907, p. 372). Improvement by counties of
innavigable streams.

Section 4043 {En. 1907, p. 373). Protection of roads from
storms.

Section 3663. Assessment of Water Ditches, Toll Roads and
Telegraph Lines. ** Water ditches constructed for mining, manu-
facturing or irrigating purposes, and wagon and turnpike toll
roads must be assessed the same as real estate by the assessor of the
county, at a rate per mile for that portion of such property as lies
within his county."

Miscellaneous Statutes. — Statutes of 1854, page 76. Concerning
Water Commissioners. See text, section 391.

STATUTES OF 1889, PAGE 202, SECTION i.» When two or
more persons are associated by agreement in the use of a ditch or
flume, or are using for the irrigation of land a ditch or flume, to the
construction of which they or their grantors have contributed, each
of them shall be liable to the other for the reasonable expense of
maintaining and repairing the same in proportion to the share
in the use of the water to which he is entitled.

Section 2. If any of them refuse or neglect, after demand in
writing, to pay his proportion of such expenses, he shall be liable
therefor in an action for contribution in the nature of an action
on the case, and in any judgment obtained against him, interest
from the time of such demand at the rate of two per cent per
month may be included.

Section 3. If any of them willfully appropriate to his own use
more than his proportionate share of the water from such ditch
or flume, to the detriment of his associates, or any of them, he
shall be liable in damages in treble the value of the water so ap-
propriated in excess of his proper share.

9 Quoted in full.

CALIFORNIA. 723

Section 4. The actions provided for in sections two .and three
may be brought by any or either of the parties injured, and may
be joint or several.

Section 5. This act shall take effect from and after its passage.

The work to which the statute of and the work must benefit him, and

1889, page 202, chapter 168 (C. C. hence work done in fluming and ce-

842, 843), providing for contribution „ienting below his point of diversion

between co-owners of a ditch, appli^ jg not within that statute. Arroyo

!Uif?l *t *"" Ji ^^"^ "" \* ^ "^'^^ -K «tc- Co. V. Bequette (Cal.), 87 Pac.

which the party from whom contnbu- ,^ ^ \ /»

tion is demanded has beneficial use, .

Statutes of 1905, page 152, chapter 157, provides for co-operation
of the State of California with the Federal government's irriga-
tion plans under the National Irrigation Act, provided it does
not ** interfere with the water already appropriated or in reservoirs
or now in use for irrigation purposes, or domestic purposes, under
the laws of this State." See, also. Statutes of 1907, chapters 161.
461, giving the officials a right of entry for inspection upon private
and State lands, and Statute of 1907, chapter 407, concerning
water users associations. And Statutes of 1907, page 848, giving
rights of way over state lands.

STATUTES OF 1907, CHAPTER 321}^ An ax;t authorizing
any incorporated city, town or municipal corporation, to construct,
equip, use, maintain and operate any works, road, railroad, tram-
way, power plant, telephone or telegraph line, or other necessary
works or structures, for the preparation, manufacturing, handling
or transporting of materials or supplies required in the construction
or completion of any public work, improvement or utility, and to
lease, acquire, by purchase, condemnation or otherwise, and hold
and use lands and other necessary property for said purposes.
(Approved March 18, 1907.)

Section 1. Any incorporated city, town or municipal corpora-
tion in this State is hereby authorized to construct, e(iuip, use,
maintain and operate any works, road, railroad, tramway, power
plant, telephone or telegraph line, or other necessary works or
structures, within or without such city, town or municipal corpo-
ration, or the county wherein such city, town or municipal corpora-
tion is located, for the preparation, manufacturing, handling or
transporting of any materials or supplies required in the construc-

10 Quoted in full.

724 STATUTES.

tion or completion by such city, town or mnnicipal corporation of
any public work, improvement or utility, and, for the purpose of
constructing, equipping, using, maintaining or operating any such
works, road, railroad, tramway, power plant, telephone or tele-
graph line, or other necessary works or structures, such city, to^^-n
or municipal corporation is hereby authorized to lease or acquire,
by purchase, condemnation or otherwise, and hold and use, any
land, rights of way, water, water rights, quarry, gravel bed or
other mineral deposits, or any other necessary property, within or
without such city, town, or municipal corporation, or the county
wherein such city, town or municipal corporation is located.

Section 2. Nothing in this act contained shall be construed as
extending or enlarging any limitation prescribed by law or munici-
pal charter upon taxation, expenditure of public funds, or the in-
curring of indebtedness, by any city, town or municipal corpora-
tion.

Section 3, This act shall take effect immediately.

DIGEST OF STATUTES.

IKBIOATION LEGISLATION.

The following digest of the statutes of the Western States upon
waters is intended merely as a guide to the main features thereof,
and as an indication of the recent character and extent of legisla-
tion. The statutes of the majority of the States are too volumin-
ous to be given in detail, and only the most important features are
noted. The latest law of Nevada is given in full, however.

The paragraph ''concerning riparian rights^' is intended to point
out provisions similar to those which have influenced courts fol-
lowing the Colorado view in rejecting the conunon law of riparian
rights in toto. These clauses sometimes* appear also in the irriga-
tion codes of the States where the California doctrine recognizing
the common law of riparian rights has hitherto been in force. It
is suggested that perhaps it would be worth while, in these States,
to have a clause expressly saving the existing rights of existing
riparian proprietors, for the reasons discussed in the text.

The laws of Wyoming are largely the result of labors of Mr.
Elwood Mead, formerly State Engineer of Wyoming, and later
Chief of the Irrigation Investigation of the United States Depart-
ment of Agriculture. In Wyoming, Colorado and Nebraska these
statutes have been in force for some time. In 1901 an attempt
was made to introduce in California, by what was known as the
Works bill, an administrative code similar to the laws of Wyom-
ing. The attempt was aided by Professor Mead, then occupying
a chair in the University of Calif omia, who urged sueh a measiire
in a publication of the United States Department of Agriculture,^
but the bill failed of passage because of the opposition of irrigators in
Southern California. In 1903, at the direct solicitation of com-
missions appointed by the governors of Oregon and Washington,
a draft for a code was prepared by Mr. Morris Bien, the head .of

1 Bulletin, 100.

(726)

726 DIGEST OF STATUTES.

the legal department of the United States Reclamation Service.
This code was partially adopted in Oregon, but failed entirely of
passage in Washington. Nevertheless it was substantially enacted
in North Dakota, South Dakota and Oklahoma, in the statutes
given below. The draft by Mr. Bien was based upon the codes
already existing in Wyoming, Utah and Idaho.

The writer understands that while legislation of this kind is
favored by all engineers, whether of the Department of Agricul-
ture or of the Reclamation Service of the Department of the In-
terior, yet the Department of Agriculture is most pleased with the
part of it looking to the encouragement of private enterprises,
while the Reclamation Service is most interested in that part which
tends to ''government ownership" of irrigation.

Not the least interesting feature of the irrigation code legisla-
tion is the clause which places a maximum limit upon the quan-
tity which an appropriator may have for irrigation. The effect
of this clause upon existing owners is the subject of much dis-
cussion. Some believe that anyone who has already appropriated
more than the limit allowed for irrigation cannot now be made
to take less, claiming the protection of the fourteenth amendment.
Others insist that the doctrine of appropriation never gave existing
owners the right to waste water, and that the statute merely pro-
vides a legislative definition of what constitutes waste. It seems
to the writer not impossible that the courts will declare thaft what
constitutes waste is a question of fact depending upon the evidence
in each case, and not a question of law for declaration by the leg-
islature. The Attorney (Jeneral of Nebraska, however, in 1902,
advised the State Engineer that such a limitation is valid, against
existing appropriators as well as new ones, relying on California
cases.^

This legislation has been criticised as enforcing litigation on all
water users to establish their rights, when but a small proportion
of contests would arise if left alone, and because of the enforced
expense. In a case where this objection was raised it was said:
*' Every person who appropriates water under the laws of this State
must remember that it is sure to cost something for a final ad-
judication of such rights, and that they must pay the costs.'*'

2 Barrows v. Fox. and Natoma etc. Twaddle v. Winters (Nev.), 85 P»c

2280
Co. V. Haneock, which prohibit waste, ,• ^^.^ ^^^ ^o. v. Stewart (Idaho),

M cited in . the text. But oompare 77 pj^^^ 31^

IRRIGATION LEGISLATION. 727

In the Report of the Wyoming State Engineer for 1905-06, how-
ever, in practice the Wyoming i^ystem is said to work to general
satisfaction. Only one arrest occurred in five years in water divi-
sion-number two in that State, and in two years no appeals were
taken from the orders of the water officials.

The relation of the law of waters to practical irrigation is a
matter of great importance. The writer has tried to state the
law as it is. Many engineers in the field, however, believe that
the law as it has been worked out by the slow and laborious process
of court decision (spread through many books where it is not
easily found, and taking shape largely from the conservative at-
titude of the courts in their desire to protect vested rights or, as
Professor Mead expressed it:* **The slow evolution of a doctrine
by piecemeal through court decision") does not adequately meet
the requirements of the present energetic proscution of irrigation
works by many new methods. This attitude of the hydraulic
engineers has largely led to the recent irrigation code legislation.
As above stated, a draft of a State Irrigation Code was prepared
by Mr. Morris Bien, head of the Legal Department of the United
States Reclamation Service, at the direct solicitation of commis-
sioners appointed by the Governors of Washington and Oregon.
His draft was substantially adopted in 1905 and 1907 in other
States and Territories, as elsewhere set forth.

The writer requested Mr. Bien to present to the readers of this
book a general view of the objects sought in the irrigation code leg-
islation, and in reply received the following letter, which the writer
considers it a privilege to be able to include.

4 Bulletin 100, U. S. Dep. Agric, p. 49.

728 DIGEST OP STATUTES.

DEPARTMENT OF THE INTERIOR.

UNITED STATES GEOLOGICAL SUBVET.
RECLAMATION SERVICE.

Washingrton, D. C, November 1, 1905.
Mr. Samuel C. Wiel,

Dear Sir : I am in receipt of yours of October 21, 1905, request-
ing a statement of views concerning the recent irrigation legislation
in the States and Territories of the West. My understanding is
that you desire an expression concerning the relation of these
enactments to the engineering side of irrigation.

In regard to the general features of this subject, the most im-
portant matter of interest to the engineer is that the adjudications
of the courts upon the subject of water rights should bear a closer
relation to the physical conditions than was the case until within
recent years, and even now there are frequent decisions which
do not take fully into account the facts regarding water supply
and the needs of the irrigators.

The principal advance in recent years in irrigation legislation
has been a tendency to provide the supervision of persons tech-
nically qualified on the engineering side, in the appropriation, ad-
judication and distribution of water.

The earliest practice in the arid region permitted appropriators
to put of record such claims to the water supply as they deemed
advisable. The natural tendency was to make the claim large
enough to cover all possible future development of their plans.
This led in many instances to speculative claims and numerous
cases are of record where each of a number of claims to the water
of a stream filed in pursuauce of the State statute involved a larger
quantity of water than had ever flowed in it even in times of great-
est flood.

When questions concerning such a stream came before the courts
for adjustment the record would show claims to the use of watev
far in excess of any possible supply in connection with expert tes-
timony (much of it was unreliable) as to the quantity of water

IBRIGATION LEGISLATION. 729

available. In addition to this there would be much testimony on
behalf of the parties to the proceeding tending to show the needs
of crops as far in excess of the requirements of reasonable use.

As a result, the .courts have decreed to the various claimants
rights to the use of water which could by no possibility be obtained
from the stream because the water was not there. These decrees
have therefore left matters in but little better shape than they
were before, and the parties have often been required to agree
among themselves as to the partition of the water supply, follow-
ing these decrees only in a general way, as an alternative to further
expensive litigation.

In most of the recent legislation provision is made for a State
Engineer who shall carefully examine all applications for water
rights and attempt to keep such applications within some reason-
able relation to the amount of water available. He is required also
from time to time to make hydrographic surveys, measuring the
water supply in the streams and the amounts used for irrigation
and other purposes. These investigations are used for the purpose
of adjudicating the claims to water already of record and with a
resulting determination of the amount of unappropriated water
available for further application.

In this way the States having legislation of this character pro-
pose to adjust accurately all claims of record and to regulate the
filing of future claims.

The investigations of the State Engineer as to the water which
is used are ultimately to form the basis of an adjustment of the
rights of aU parties by the courts. In some States there is an
intermediate step providing for an adjustment by a State tribunal
which is final in case there is no appeal to the judicial branch.

The water claimed under adjudication by the courts or under
filings of record is distributed by State officers usually appointed
by the State Engineer. The distribution is therefore, in a similar
way, under the supervision of persons technically qualified to
measure the water supply who become thoroughly familiar with the
rights of all parties in the districts under their charge and wh6
are thus qualified to distribute the water to the best advantage
avoiding a condition which has often existed,' of a waste in the use
of water in one portion of a stream system and a corresponding
shortage in another.

730 DIGEST OF STATUTES.

In addition to this, the legislation often provides a minimum duty
of water, namely, that the unit of water supply shall be utilized
for the irrigation of not less than a given number of acres. This
legislative declaration of the duty of water would naturally be a
guide to the courts in their adjudications and prevent the decree
of excessive quantities of water, of which so many instances are of
record.

The gratifying feature of nearly all recent legislation is the
recognition of the logical underlying principles of the use of the
waters in the Western States and Territories, a principle which is
concisely stated in section 8 of the Act of Congress approved June
17, 1902 (32 Stat., 388), known as the Reclamation Act: "That
the right to the use of water • • • shall be appurtenant to
the land irrigated and beneficial use shall be the basis, the meas-
ure and the limit of the right."

The idea that all rights to the use of water shall be founded
upon beneficial use is of course as fully applicable to mining, power,
manufacturing and all other beneficial purposes, as to irrigation.

The application of this principle to future legislation of the
various States and Territories in which irrigation is practiced can-
not fail to bring about a more satisfactory condition in this re-
spect and eliminate from enterprises depending upon the use of
water the doubts as to the legal status of water rights and the
great expense due to litigation resulting from these uncertainties.

The interest of the engineer in this legislation is of primary im-
portance, as he finds it a great handicap in the designing of eco-
nomical and efficient hydraulic structures when the amount of
water which may be available for use therein is. undetermined.
The question in fact involves engineering considerations fully as
much as, if not more than, those of a legal nature, and the out-
look for future legislation is the more satisfactory because legis-
lators have begun to recognize the hydraulic engineer as a neces-
sary factor in the appropriation, adjudication and distribution of
rights to the use of water.

Very respectfully,

MORRIS BIEN,

SUPERVISING XNOINKER,
17. S. RECLAMATION SERVICE.

lERIGATION LEGISLATION. 731

President Roosevelt has said : ^

"The security and value of the homes created depend largely
on the stability of titles to water; but the majority of these rest
on the uncertain foundation of court decisions rendered in ordi-
nary suits at law."^

To bring out clearly the divergence which Mr. Bien points out
between the scientific men (and the President) and the courts, the
side of the judges is represented in the following statement: "We
cannot agree that the doctrine (a point in the law of appropria-
tion) has resulted from ignorance concerning irrigation matters.
Nor can we agree with the notion that men not necessarily or
usually trained in the law are more competent than the courts
to determine the legal principles controUing the use of water by
prior appropriation, notwithstanding that the judges, as a rule,
may not be practical irrigators."'^

By way of suggestions, the State Engineers of six States met and
formed the Association of State Engineers at Salt Lake City in
May, 1904. The first regular meeting was held at Boise City,
Idaho, in September, 1904. At this meeting resolutions were
unanimously adopted recommending that rights should be limited
to a definite volume per season rather than a definite flow for
an indefinite period; that maps accompanying filings should be
drawn from actual surveys; that water rights should be appur-
tenant to the land irrigated and inseparable therefrom, except
by some regular procedure; that the State Engineer should be
the chief executive in water administration, and should have larger
discretion in limiting the use by individuals, in approving or re-
jecting applications for appropriations, in extending time for fil-
ings and in appointing his subordinates.

A recent writer ^ suggests the creation of a special judicial tri-
bunal to handle water litigation, to be called a water-court.

5 Cong. Eec., vol. 35, pp. 85, 86. Hone etc. Co., 13 Wyo. 208,- 110 Am.

6 Boosevelt's Meesage, 57th Cong., 6t. Bep. 086, 70 Pac. 26, 70 L. B.
1st Session. A.. 341.

7 Potter, J., in Johnston v. Little 8 Mill 's Irrigation Manual.

732 STATUTES.

ABIZONA.

The law of Arizona is covered by the chapter in Revised Statutes
of 1901, page 1045, and is declared by the courts to be influenced
by the civil law. (Clough v. Wing, 2 Ariz. 371, 17 Pac. 453;
Austin V. Chandler (Ariz.), 42 Pac. 483.) The court follows the
Colorado system rejecting the common law in toto. {Supra, text
section 23.)

Revised Statutes 1901, section 4168 {CivU Code). **The com-
mon-law doctrine of riparian water rights shall not obtain or be
of any force in this territory."

Revised Statutes 1901^ section 4l74 {CivU Code). "All rivers,
creeks, an4 streams of running water in the territory of Arizona
are hereby declared public, and applicable to the purposes of irri-
gation and mining as hereinafter provided."

The system there provided is in many respects peculiar to
Arizona.

Statute of 1907, page 170. Exemption from taxation of dams
and reservoirs hereafter constructed for irrigation, watering stock,
mining, and generating electricity.

For the history of Arizona law as borrowed from New Mexico
and Sonora, see Bo^^uillas etc. Co. v. Curtis (Ariz.), 89 Pac. 504.

UOLOEADO. 733

COLORADO.

References are to Mills' Annotated Statutes, volumes 1, 2, 3
(1905 ed.) ; Constitution, article XVI. Laws of 1907 contain prac-
tically no le^slation on the subject.

There is much statutory law upon this subject in Colorado, and
the courts have frequently declared irrigation to be one of the
most urgent matters in the State. An irrigation code commission
was appointed in laws of 1889, page 466, but accomplished little.

Declaration of State Ownership. — "The water of every nat-
ural stream not heretofore appropriated, within the State of Colo-
rado, is hereby declared to be the property of the public." (Const.,
art. XVI, sec. 5.)

Oonceming Riparian Rights. — Constitution, article 16, section
6, . provides that the right to appropriate unappropriated water
shall never be denied, and that priority shall give the better right.
The courts have declared that the rejection of riparian rights is
not impaired by a statute which provides that all landowners on
the banks of a stream are entitled to the use of the water for
irrigation, as that merely confers the right to appropriate. (M. A.
S. 2256, laws 1861, p. 67, sec. 1 ; 1862, p. 48, sec. 13 ; 1864, p. 68,
sec. 32.) In Colorado laws of 1861, page 67, section 1, it was pro-
vided that all landowners on a stream are entitled to use the water
for irrigation. In Session Laws of 1862, section 13, page 48, it
is provided that no stream shall be diverted to the detriment of
any landowner alopg it. In Laws of 1864, page 68, section 32,
the words **who have a priority of right" were inserted. See
Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 Pac. 854 ;
Crippen v. White, 28 Colo. 289, 64 Pac. 184; but see Schwab v.
Beam, 86 Fed. 41. (See ante, section 2ft, text.)

Preferences and Pro-rating. — In case of deficiency of water do-
mestic uses prevail over others, and next, irrigatioil. (Const., art.
XVI, sec. 6.) This preference to domestic uses is construed not
extending beyond the common-law preference under riparian rights.

734 STATUTES.

(See text.) The water commissioners may pro-rate the water in
time of deficiency between all appropriators, by volume or by
time of use. (M. A. S. 2259, 2267.) Between consiuners from the
same ditch, pro-rating is provided in times of scarcity (in M. A.
S. 2267). An appropriation for domestic use shall not be used
for irrigation to any extent whatever (saving cities the right to
sprinkle streets). (3 M. A. S., 1905 ed., 2269a.)

Administration. — All waters are dedicated to the use of the
people of the State, subject to appropriation. (Const., art. 16,
sec. 5.) The whole State is divided into five irrigation divisions.
(3 M. A. S., 1905 ed., 2440 et seq.) The office of superintendent
of irrigation is abolished, and five irrigation division engineers es-
tablished, one for each division. (Ibid.) The irrigation division
engineer has general control over the water commissioners of the
districts within his division, and makes rules for carrying out the
decreed priorities. {Ibid.)

Within the irrigation divisions there are water districts (unin-
corporated). There are sixty-eight of these, formed according to
the location of the water supplies, and they, are enumerated in
M. A. S. 2310 et seq. There is one water conunissioner for each
district, whose duties are to carry out the priorities decreed by
court (M. A. S. 2381, 2384) and to keep a general lookout over
the district. (See 3 M. A. S., 1905 ed., 2381-2385a.) He may in-
voke the aid of the sheriff or constable (M. A. S. 2384), and has
himself the power of a constable. (M. A. S. 2366.)

The State Engineer has general control over all (3 M. A. S.,
1905 ed., 2447h), and general supervising control over all waters
within the State. (M. A. S. 2459; 3 M. A. S., 1905 ed., 2286a,
2286b.) The State Engineer is the nominal head of the adminis-
trative system of the State, but, in fact, he has less to do with
distributing water than either the division engineers or the water
commissioners. (Bulletin 168, XI. S. Dept. Agric.)

Determination of Existing Priorities. — The Colorado system of
determining and adjusting rights, which has been copied in some
other States, consist exclusively (3 M. A. S. 2339, 1905 ed.) in a
special proceeding before court. The claimant makes an appli-
cation to the district court or a judge thereof, and a notice thereof
is published. (M. A. S. 2405 et seq.) The form of hearing Is

COLOBADO. 735

specially provided for. (M. A. S. 2403.) The judge may order
the hearing before a referee, in which case the form of hearing is
likewise specially provided for. (M. A. S. 2409 et seq.)

The decree must be specific. A certificate thereof is given and
the holder files the certificate with the water commissioners, who
act accordingly. (M. A. S. 2404.) The certificates must be num-
bered consecutively (M. A. S. 2408) and be recorded. (M. A. S.
2404.) An appeal may be taken to the supreme court. (M. A. S.
2427 et seq.) A list of decreed priorities is kept by the State
Engineer and the Irrigation Division Engineer. (3 M. A. S., 1905
ed., 2447i.)

A similar procedure is provided for appropriations for other
uses as well as for irrigation (3 M. A. S., 1905 ed., 2399a et seq.) ;
and for changes in the place of diversion. (3 M. A. S., 1905 ed.,
2273d et seq.)

Method of Appropriating — The first Colorado Act for maps
and filings was held unconstitutional because of a defective title.
(Lamar etc. Co. v. Amity etc. Co., 26 Colo. 370, 38 Pac. 600 ; Rio
Grande etc. Co. v. Prairie etc. Co., 27 Colo. 225, 60 Pac. 726;
Beaver etc. Co. v. St. Vrain etc. Co., 66 Colo. App. 30, 40 Pac.
1066.) The present act of 1903 provides: Within sixty days
after beginning work the appropriator must file two duplicate
maps with the State Engineer, in a form satisfactory to him,
showing headgates, route, high-water line of reservoirs, feeders,
etc., ditches leading to or from canals, etc., and the lands where
built. Attached to the maps must be sworn statements of location
of headgate, dimensions of works, capacity, time of commencement
of work, estimate of cost. The State Engineer, if he approves, re-
turns the duplicate map and statement with a certificate of ap-
proval, which claimant records with county clerk and recorder.
"Provided nothing herein contained shall be construed so as to
dispense with the necessity for due diligence in the construction
of such projects, or to the injury of those having prior rights to
those of the claimants" — or to prevent adjudication of priority as
elsewhere provided. (3 M. A. S., 1905 ed., sees. 2265a-2265h.)

Reservoirs. — Special provisions for reservoirs having a capacity
of over seventy-five million cubic feet, etc., are contained in 3 M.
A. S., 1905 ed., 2270a et seq. ; 2286d et seq. ; M. A. S. 2270.

736 STATUTES.

Measurement of Water. — The State Engineer shall furnish a
rating table to be used in measuring the water flowing to or from
a public stream into which it has been discharged for conveyance.
(3 M. A. S., 1905 ed., 2286c.) The unit of measurement in gen-
eral is, for flowing water, one cubic foot per second; for volmne,
one cubic foot. (M. A. S. 2467.)

Water Companies. — Constitution, article XVI, section 8, provides :
**The general assembly shall provide by law that the board of
county commissioners, in their respective counties, shall have p>ower,
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." (Art.
XVI, sec. 8.)

The exaction of bonuses by a company before furnishing water
is prohibited, and failure to supply on demand is a misdemeanor.
(Laws 1887, p. 308. See Schneider v. People, 30 Colo. 493, 71
Pac. 369.)

*
Ditches on Private Land — ^Eminent Domain. — In the territorial
court it was held that irrigation ditches could be built over private
land without condemnation or compensation, and this has passed
into the Constitution, article II, section 14. Our discussion in the
text has led to the conclusion that the courts nevertheless have
withdrawn this rule ; ahd that the provision would violate the Con-
stitution of the United States (Amendment XIV). The Colorado
Constitution contains, however, a requirement for compensation
in the same regard in article XVI, section 7, M. A. S., section 3158,
inhibits building a ditch over a mining claim without condemnation.
And see article II, section 15, which contains the usual eminent
domain provision for a hearing and just compensation.

Irrigation Districts. — ^Irrigation districts based on the Wright
Act of California are provided for in Statutes of 1901, chapter
87, page 198, and Laws of 1903, chapter 123, page 265; Amended
Laws of 1907, chapter 194, page 488. The substance of these
statutes is set forth in extenso in Anderson v. Qrand Valley Irr.
Dist. (Colo.), 85 Pac. 313. In this case it was held: (a) The
title to the act is not insufficient; (b) The act is in all substantial

COLOBADO.

737

particulars the same as the California acts, and is constitutional;
(c) The difference in doctrine as to the law of waters in the two
States has no bearing.

k — Irrigation under Carey Act (A. C. Aug. 18,
1894), see Laws of 1907, page 367. Concerning city waterworks
districts, see Laws of 1907, page 612. Concerning water users
associations under the National Irrigation Act, see Laws of 1905,
page 360, chapter 141 ; 3 M. A. S., 3d ed., section 491, s, t. Con-
stitution, article X, section 3, provides that ditches, canals and
flumes owned and used by individuals or corporations, for irrigat-
ing land owned by such individuals or corporations, or the in-
dividual members thereof, shall not be separately taxed so long
as they shall be owned and used exclusively for such purposes.

While the writer, foUowing Long
on * Irrigation, has used the name
''Colorado doctrine" in designating
the doctrine of the arid States in
opposition to the California doetrine,
yet the law of Colorado in reality
presents some points of uncertainty
between the two doctrines.

There is a statute in Colorado pro-
viding that all landowners on the
banks of a stream have a right to
use the stream for irrigation. This
was early enacted in Colorado, and
seems to h^ve been intended at the
time to serve as respects irrigation
the same purpose as the C^fomia
provision. "The rights of riparian
owners are not affected by the pro-
visions of this title." The same pro-
vision as that in Colorado was enacted
in Montana in its early days, and
Chief Justice Wade considered such
its intent. Thorp v. Freed, 1 Mont.
651. The Colorado court, however,
did not consider such its true con-
struction. Coffin V. Left Hand Ditch
Co., Crippen v. White. See ante, sec.
23. The State court decisions are
strong that the common law of ripa-
rian rights is not, as respects irriga-
tion, preserved ; but the Federal court,
on the other hand, has held that
the common law of riparian rights
is preserved as respects everything
else than irrigation. See ante, sec.
110. So that there is a statute ap-
pearing to preserve riparian rights

Water Bicht§-^7

as respects irrigation, and a Federal
decision appearing to preserve them
as respects everything else. This,
however, does no more than raise
some uncertainty, since the spirit of
all the State court decisions is abso-
lute that riparian rights do not exist
at all.

With the exception of one line of
cases. It seems that riparian rights
as at common law do exist in Colo-
rado so far as concerns domestic uses.
It appears that the landowner in
Colorado has a right to use water
for domestic uses without regard to
the relative time he makes such use
as compared with appropriations made
for other uses. Article 6 of section
36 provides that domestic uses are
preferred over all other uses, and this
lias been construed to confer upon an
appropriator the use which a riparian
proprietor would have had al com-
mon law for domestic use. It is true
that the decisions on this are nega-
tive, that is, holding that the constitu-
tional preference does not exceed the
common-law riparian rights, but in
reaching this conclusion, the court sev-
eral times said that to the length of
the -common-law right of domestic use
it did extend, ^e ante, sec. 51.
Broadmoor etc. Co. v. Brookside etc.
Co. (Colo.), 52 Pac. 792; Montrose
etc. Co. V. XiOtttenhizer (Colo.), 4S
Pac. 532, citing cases.

738

STATUTES.

Beside this uncertainty as to how
far the common law of riparian rights
is in fact rejected in Colorado, it is
the impression in that State that the
constitutional provision that the right
to appropriate unappropriated water
■hall never be denied precludes stat-
utory regulation of new appropria-
tions in so far as such regulation

would deny the right to make an h^
propriation at the discretion or de-
termination of a public officer sucb
as the State Engineer.

For these reasons Colorado Is per-
haps not the best exponent of the doc-
trine of the arid States as opposed
to Ithe California doctrine.

IDAHO. T39

IDAHO.

References are to Laws of 1903, page 223, and amendments in
Laws of J1905 and 19l)7; Civil Code, 1901, section 2625 et seq.;
Code of Civil Procedure, 1901, section 3791 et seq.; Constitution,
article XV.

Declaration of St^te Ownership. — The right to appropriate
water shall never be denied. (Const., art. XV, sec. 3.) There is
no express declaration on this point in the law of 1903 or its
amendments ; but the Civil Code of 1901, section 2625, contains
the following: **A11 waters of the State when flowing in their
natural channels, including the waters of* all natural springs and
lakes within the boundaries of th^ State, are declared to be the
property of the State.'*

Concerning Riparian Rights. — ''All rights to divert and use the
waters of this State for beneficial purposes shall hereafter be ac-
quired and confirmed under the provisions of this Act." (Stats.
1903, p. 223, sec. 41. See, also. Const., art. XV.) The courts
• follow the Colorado system rejecting riparian rights in toto, (See
text, sec. 23.)

• ■

Preferences and Pro-rating. — Constitution, article XV., section
3. First, domestic uses; second, mining (in mining districts);
third, agricultural; fourth, manufacturing.

Administration.— The Constitution (Art. XV, sees. 4, 5) provides
for State control. The State of Idaho is, by the statute, divided
into three water divisions, numbered 1, 2 and 3 (Stats. 1903, p.
223, sees. 13-16), with one water commissioner for each division
(Ibid., sec. 17), to hold office for six years. (Ibid., sec. 18.) He
shall have genera] control over his division, under the general su-
pervision of the State Engineer. {Ibid. 19, as amended 1905, p.
361.) See, further, regarding administration, the Statutes of
1907, page 532.

740 STATUTES.

The State Engineer, after the passage of this Act, shall make an
examination of the streams of the State (beginning with those
whose waters have not yet been allotted), with maps and complete
information, on which maps he shall add all rights hereafter li-
censed or decreed. (Stats. 1903, p. 223, sec. 33.)

A State Board of Irrigation is constituted, consisting of the
State Engineer, and the three water commissioners, ^o meet-
ing of said board shall exceed five days, once a year. . The board
shall provide general rules and regulations concerning proof of
completion of ' works, and for the distribution of water. (Sec.
22.)

The Board of Irrigation shall divide the State into water dis-
tricts, from time to time as priorities become adjudicated; with
one master for each, appointed by the water commissioner of
the division, and holding office for one year; in some cases elected
by the appropriators. .The water master regulates the distri-
bution of water among the several ditches and to the several
appropriators. (Ihid,, sees. 23, 24.) The water masters must re-
port v to the division commissioner, who issues such orders as
are necessary to enforce the tabulated priorities of his whole
division without inequality among districts. {Ibid,, sec. 25.)
The water master shall shut headgates when necessary, having
power to arrest all who waste water or interfere with measuring
devices, headgates, etc. (Ihid,, sec. 26.) The water masters shall
not begin work until requested in writing by two or more appro-
priators {Ibid,, sec. 27), the pay of the water master being a
charge against the land of the users who call him in, or against
the canal of the canal company, if called in by such company.
Concerning pay of water masters see Statutes of 1907, page 482.

Determination of Existing Priorities. — See, also, Code of Civil
Procedure- (1901), section 3791. Where the waters of any stream
have not yet been adjudicated the water commissioner within
three months after the passage of this act must bring suit in
the district court against any and all claimants whose rights
are unadjudicated, serving summons by publication. The pro-
ceedings shall be conducted in the same manner as actions for
the adjudication of water rights, and the decree shall be deemed
a part of and supplementary to the original decree. (Stats. 1903,

IDAHO. 741

p. 223, sees. 34, 35.) This procedure was held unconstitutional in
Bear Lake County v. Budge (Idaho), 75 Pac. 615.

Whenever suit is tiled in the district court for the adjudica-
tion of priorities, the judge shall ask the State Engineer to make
an examination of the stream as provided in section 33, prepar-
ing a map and gathering information, his expenses forming, part
of the costs in the action, and a lien on the lands and water
rights of the parties. (Stats. 1903, p. 223, sec. 37, as amended
1905 p. 357.) This part of the act was held constitutional in
Boise etc. Co. v. Stewart (Idaho), 77 Pac. 25. The decree must
specify the time (not exceeding four years) and amount allowed
for future needs. (/Wd., sec. 38. See Trade Dollar Min. Co. v.
Fraser, 148 Fed. 587. See also, Laws 1907, p. 507.)

Certified copies of decrees now on file must be sent by the
clerks of the various district courts to the State Engineer, who
tabulates them and sends a certified copy to each water commis-
sioner, who in turn tabulates those of his division and distributes
printed copies to the users. The commissioner each year shall
print a list of all decrees or licenses issued from time to time and
distribute copies among the users. (Ibid,, sees. 39, 40.) Certified
copies of all decrjees hereafter are transmitted by the clerks of
the courts to the State Engineer. (/6id., sec. 39.)

Method of Approprii^ting.— This part of the act was held con-
stitutional in Boise etc.- Co. v. Stewart (Idaho), 77 Pac. 28. Be-
fore commencing the construction, enlargement or extension, or
change in the point of diversion of the diteh, canal or ' other
distributing works, an application must be made to the State
Engineer for a permit. **Such application must set forth: (1)
The name and postoffice address of the applicant; (2) the source
of the water supply; (3) the nature of the proposed use; (4) the
location and description of the proposed ditch, channel or other
work, and the amount of water to be diverted and used ; (5)
the time required for the completion of construction of such
works, which in no case shall exceed five years from the date of
approval of application; (6) the time required for the complete
application of the water to the proposed use-, which must be
within four years after the date set for the completion of such
works." Duplicate detailed maps must accompany the applica-
tion; also, if a corporation, specified detailed matters must be

742 STATUTES.

stated concerning the corporation. If for other than irrigation
purposes, a statement of the purpose, description of works,
whether the water is to be returned to the stream, and where.
If for agricultural purposes a description of the land to be irri-
gated. (Stats. 1903, p. 223, sec. 1, as amended 1905, p. 357.)

These applications must be numbered consecutively and by the
State Engineer, ^-ho indorses thereon the date of receipt, and
makes a record thereof. He may require the application to be
corrected. On approval, the application is so indorsed^and re-
turned to the applicant, constituting a permit to proceed. (Stats.
1903, p. 223, sec. 2, as amended 1905, p. 357.)

If the capacity of the works is less than twenty-five cubic feet
per second, work must be begun within sixty days, and prose-
cuted with diligence; if over twenty -five cubic feet per second.
a bond must be filed within sixty days, in an amount not over
$10,000 fixed by the State Engineer, for the faithful prosecution
of the work. (Sec. 3.) Work must be completed within five
years, or less if the State Engineer so requires, at least one-fifth
of the work being done within the first half of the time allowed.
Actual application and use of the water must follow within four
years, or less if the State Engineer so requires. Appeal from the
indorsement by the State Engineer lies to the district court within
sixty days. (Stats. 1903, p. 223, sec. 2, as amended 1905, p.
357.)

If one-fifth of the work is not done within one-half the time
allowed, any other holder of a permit may petition the State
Engineer for a cancellation of the permit of the other, subject
to appeal to the district court. (Stats. 1903, p. 223, sec. 3, amd.
1907, p. 532.)

On completion of the work, proof of completion must be filed
with the State Engineer on a form furnished by him, stating a
given list of facts, and if to carrj^ over fifty cubic feet per second,
must be certified to by a well-known and competent irrigation
engineer. This proof is published for four weeks in a newspaper,
at the expense of the person making the proof. The State Engi-
neer may require further matters in proof of completion (Stats.
1903, p. 223, sec. 4), and must make a full inspection of the
works and render a report. He then issues a certificate setting:
forth certain enumerated details concerning the work. (Stats.

IDAHO. 743

1903, p. 223, sec. 5.) Any person aggrieved by his determination
may appeal to the courts. (Stats. 1903, p. 223, sec. 6.)

Following completion, proof must be made within four years
of the actual application and use of the water. A notice in writ-
ing, stating enumerated details, upon forms furnished by the
State Engineer, is published for four weeks. After an inspection
of the works, and submission of written proof of use, the State
Engineer, if satisfied, issued a license confirming such use, bearing
the date of the original application for, and the number of, the
permit, and stating other details. (Stats. 1903, p. 223, sec. 8.)
Protests against such proof of beneficial application may be filed
with the State Engineer. {Ibid., sec. 12.)^ Any person aggrieved
by the issuance or refusal of a license may appeal to the courts.
{Ibid,, sec. 12.)

A special method is provided for appropriation on State lands.
(Laws 1907, p. 526.)

Priority of right dates from the original application for permit
to construct the works (Stats. 1903, p. 223, sec. 8), the licenses
and permits being consecutively numbered. {Ibid.)

Priority on any enlargement, extension, or grant of extra time
for completion, dates from the application for permit to make
such enlargement, extension, or to have extra time. (Stats. 1903,
p. 223, sees. 5, 8.) Unless the rights of others are injured. (Stats.
1907, p. 314.)

Change of place of use may be made upon application to the
State Engineer, stating enumerated details, and therewith a plat
if required by him. If no one is injured by the change, the State
Engineer issues a certificate authorizing the transfer. {Ibid. See,
also. Laws 1907, p. 507. But see Hurd v. Boise etc. Co. (Idaho),
76 Pac. 331.)

Measurement of Water. — No one shall be authorized to divert
for irrigation purposes more than one cubic foot per second for each
fifty acres unless it is shown to the satisfaction of the State En-
gineer that more is needed. (Laws 1903, p. 223, sec. 1, as amended
1905, p. 357.) For irrigation no license must exceed one second-
foot for each fifty acres, unless the State Engineer or court is
convinced that more is necessary ; and the right to use water shall
always be subject "to local or community customs, rules and regu-

744 STATUTES.

lations adopted by a majority of the users from a common sonree
of supply. (Stats. 1903, p. 223, sec. 9, as amended 1905, p. 174. i

Police Regulations. — ^Appropriators must maintain headgates.
rating flumes, and measuring devices, under plans furnished by the
State Engineer, and if they fail to do so, the county may build
them at the cost of the appropriator, closing the headgate if he
refuses to pay. (Ibid,, sec. 31.) Changing headgates, and inter-
ference in general with water officials, is a crime. (Stats. 1907,
p. 237.)

Irrigation Districts. — Irrigation districts based on the Wright
Act of California are provided for (Stats. 1899, p. 408; 1903, p.
150), and previous acts amended at length in Statutes of 1907.
page 484. Irrigation districts may exercise the power of eminent
domain or purchase water rights. (Stats. 1907, p. 221.)

Water Oompaoies. — Constitution, article XV, sections 1, 2, con-
tains a provision based on California Constitution, article XIV,
section 1. Concerning water rates, a further provision appears in
article XV, section 6, which has been held to prohibit the Legislature
itself from fixing rates. (Wilson v. Perrault (Idaho), 54 Pac.
ni7.) Concerning rates in cities, see Statutes of 1907, page 556.

Ditches on Private Land — Eminent Domain.— The early Colo-
rado law in this respect was enacted in the Civil Code, section
2549. In the Statutes of 1907, page 237, one may move another's
lateral from bne place on one's land to another if without injury
to. the owner of the lateral.

Section 14, article I, of the Idaho Constitution is as follows :
**Sec. 14. The necessary use of lands for the construction of
reservoirs or storage basins, for the purposes of irrigation, or for
rights of way for the construction of canals, ditches, flumes or pipes
to convey water to the place of use, for any useful, beneficial or
necessary purpose, or for drainage ; or for the drainage of mines,
or the working thereof by means of roads, railroads, tramways, cuts,
tunnels, shafts, hoisting works, dumps, or other necessary means
to complete development, or any other use necessary to the com-
plete development of the material resources of the State, or the
preservation of the health of its inhabitants, is hereby declared to

IDAHO. 745

be a public use, and subject to the regulation and control of the
State.

** Private property may be taken for public, use, but not until a
just compensation, to be ascertained in a manner prescribed by
law, shall be paid therefor."

Subdivision 3 of section 5210 of the Revised Statutes of 1887,
as amended by the Laws of 1903, page 204, is as follows:

**Sec. 5210. Subject to the provisions of this title, the right
of eminent domain may be exercised in behalf of the following
public uses: .... (3) Wharves, docks, piers, chutes, booms,
ferries, bridges, toll-roads, by-roads, plank and turnpike roads,
steam, electric and horse railroads, reservoirs, canals, ditches, flumes,
aqueducts and pipes, for public transportation, supplying mines
and fanning neighborhoods with water, and draining and reclaim-
ing lands, and for storing and floating logs and lumber on streams
not navigable."

Miscellaneous. — Ditches and water rights are declared real
property (Rev. Stats. 1887, sec. 2825). Non-use for five years
causes loss of right (Laws 1907, p. 507), with a proviso which
seems to except from this provision non-use during annual increase
of use, or what we have called * * appropriations for future needs. * '

Fees of State Engineer. — For filing application to appropriate,
one dollar for the first cubic foot to be appropriated, and ten cents
for each additional cubic foot. (Stats: 1903, p. 223, sec. 1, as
amended 1905, p. 357.)

For certificate of completion, five dollars for a capacity of ten
cubic feet per second or less, and thirty cents for each second-foot
additional. (Stats. 1903, p. 223, sec. *10.)

For examination at proof of final use of water, two dollars for
each forty acres of land irrigated, and if for other use than irriga-
tion, five dollars. {Ibid.)

Certified copies of any papers twenty cents per folio. (Ibid.)

For certiiBcate of chainge of place of use, two dollars. {Ibid.^
sec. 11, as amended 1905, p. 27.)

746 STATUTES.

KANSAS.

The statutes of Kansas resemble the Civil Code of California,
thouprh with variations and additions. (Gen. Stats. 1901, sees.
3609-3613.) Provisions for irrigation districts are found in Gen-
eral Statutes of 1901, section 3683 et seq. The court has ven'
recently followed the California system, recognizing the common
law^ of riparian rights side by side with appropriation. (See text.^
There is nothing in the State Constitution on this subject.

The statutes of Kansas upon this subject cover some thirty-three
pages in the General Statutes of Kansas for 1899, and one of the
earliest is a law of February 26, 1886, which reads 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 the first in right.'* (Gen. Stats., sec. 3501.) A notice of the
proposed appropriation must be posted at the point of intended
diversion, and within ten days thereafter a copy of the same must
be posted in a conspicuous place in the oflSce of the county clerk
of the county in which the diversion is situated and be recorded
by the county clerk. Work must commence within sixty days and
be prosecuted diligently.

In the Statutes of 1905, chapter 23, 52b, some general provisions
upon appropriation appear, and also concerning irrigation compa-
nies.

Percolating Water. — General Statutes of 1901, sections 3631,
3632, 3633. We quote these sections in full. "

3631. Subterranean Channels. Waters flowing in well-defined
subterranean channels and courses, or flowing or standing in sub-
terranean sheets or lakes, shall be subject to appropriation with the
same effect as the water of superficial channels ; and no person shaU
be allowed 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 : Provided^ that nothing in this section

KANSAS. 747

contained shall be so construed as to render any person liable in
damages for the diversion or obstruction of the flow of subterranean
waters by lawfully excavating for cellars, or for mining, quarry-
ing, or parrying on like works on his own lands, nor for excavating
drains for draining and improving his own lands, nor so as to
prohibit the proprietor of any lands from sinking wells therein,
and thereby collecting the waters percolating through lands, and
by means of pumps, buckets, and other appliances withdrawing the
same for beneficial uses on his own land: And provided further ^
that any appropriation and diversion of subterranean waters which
simply lower a water level without in fact exhausting or seriously
diminishing the actual and needful supply of any prior appro-
priator for domestic or other beneficial uses shall not be considered
an unlawful appropriation or diversion thereof.

3632. Not to Take, No person shall be permitted to take or
appropriate 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.

3633. Who Deemed to Have Appropriated. Every person com-
plying with the provisions of this act, and applying the waters
obtained by means of any artesian well to beneficial uses, shall be
deemed to have appropriated such waters to the extent to which
the same shall be so applied within a reasonable time after the
commencement of the works, and such appropriation shall have
eflPect as of the day of commencement of such works, provided the
same is prosecuted within reasonable diligence ; otherwise, from the
time of the application of the waters there^pf to beneficial' uses.

Pifltricts. — Irrigation districts under the Wright Act
of California appear in General Statutes of 1899, section 3575 et
seq. ; General Statutes of 1901, section 3683 et seq.

74g STATUTES.

MONTANA.

References are to Constitution, article XV ; CompUed Statutes of
1887,. section 250 et seq.; Civil Code of 1895, sections 1880-1892:
Amended Statutes of 1901, page 152; Laws of 1905, of 1907. An
Irrigation Code Commission was created in Laws of 1905, page 184,
chapter 90, and an irrigation statute passed in Laws of 1907, chap-
ter 185, page 489, based rather on the California system than on
the irrigation codes of the arid States, though the commission pre-
pared a draft based thereon.

Declaration of State Ownership. — Article XV of the Constitu-
tion recognizes the doctrine of appropriation, and declares waters
the property of the public. (See Smith v. Denniff, 23 Mont. 65.)

Concerning Riparian Rights. — The decisions seem to uphold
riparian rights, following the California system, though there is
room for doubt. (Smith v. Denniff, supra. See text, section 22.)

All landowners on the banks of a stream have by statute the
right to use the water thereon for irrigation. (Ban. Stats., 367,
sees. 1, 2.) This statute in some States is held not to recognize
riparian rights, but only appropriation (see text, sec. 23). In
Thorp V. Freed, 1 Mont. 651, Knowles, J.,, so also construed it;
Wade, C. J., holding the contrary. No decision was reached as to
the effect of the statute, the only two judges sitting being unable
to agree. .

Administration. — Water commissioners are provided to carry
out court decrees. (Stats. 1905, p. 145.) These commissioners have
little resemblance to those under irrigation codes.

A statute conferring on commissioners the power to apportion
the water of any creek according to the legal rights of the partie>^
is held unconstitutional as conferring on them judicial powers.
(Thorp V. Freed, 1 Mont. 1551, Knowles, J.; Thorp v. Woolman, 1
Mont. 168.)

MONTANA. 749

Method of Appropriating. — Statutes of 1907, chapter 185, page
489.

Sec. 4. **Any person desiring to appropriate water in any
stream, creek, canyon, river or ravine, wherein the rights of water
therein have been adjudicated and decreed, shall post a notice in
writing in a conspicuous place at the point of the intended diver-
sion, stating therein: 1. The flow claimed, expressed in cubic
feet per second; 2. The purpose for which said water is claimed,
and the place of intended use ; 3. The name of the stream, creek,
spring, canyon, river or ravine; 4. The name of the appropriator
or appropriators ; 5. The date of posting said notice.

**The work in the construction and completion of the means of
diverting and conveying water to place of use, shall be prosecuted
with reasonable diligence, otherwise no rights shall be acquired by
such appropriator, and no appropriator shall acquire any rights
to water in excess of the carrying capacity of the ditch or means
of conveying water, nor in excess of the amount actually needed
by the appropriator for some useful and beneficial purpose."

Within forty days after completion (for irrigation) application
must be made to clerk of district court with a sworn statement, who
orders examination by some competent civil engineer to be finished
within thirty days. The clerk publishes once a week in three suc-
cessive issues a notice, and before last publication, written objections
by others may be filed with clerk. If no objection, court enters or-
der allowing the appropriation. If objections, hearing had, and
the court may make any order it deems proper. The fees of court
and surveyor must be deposited with the clerk of the court in ad-
vance (e. g.y cost of survey not over $10 per day and traveling ex-
penses; plats, $5 each), and until the fees are paid no water right
shall be valid (section 7). The clerk of court shall keep a separate
book for these records (section 9).

Determination of Wxisting Priorities. — No comprehensive sys-
tem for determining existing priorities is fixed; but new appro-
priations, as above, are established at their initiation by decrees
of court. It is also provided that appropriations hereafter are
subject to all existing decrees of court concerning the stream.
{Ibid,, sees. 1-3.)

750 STATUTES.

Irrigation Difltricts.-rlrrigation districts based on the Wright
Act of California are provided in Statutes of 1907, page 136.

Miscellaneous. — The amount of an appropriation is limited to
beneficial use. Any unused surplus diverted must be returned to
the stream on written demand by a subsequent appropriator or
he will be entitled to damages resulting from the failure to do so.
(Stats. 1907, p. 109.) One hundred miner's inches are declared
equal to two and one-half cubic feet per second (** second- feet'*;.
(Stats. 1907, p. 489, sec. 10.) Appropriations by the United States
Reclamation Service are authorized. (Stats. 1905, c. 44, p. 80.)

The Constitution, article III, section 15, contains the following
variation of article XIV, section 1, of the California Constitution :
* * The use of all water now appropriated, or that may hereafter be
appropriated, for sale, rental, distribution or other beneficial use.
and the right of way over the lands of others for all ditches, drains,
flumes, canals and aqueducts necessarily used in connection there-
with, as well as the sites for reservoirs necessary for collecting and
storing the same, shall be held to be a public nse."

NEBBA8EA. 751

NEBRASKA.

References are to Compiled Statutes (1903) ; and amendments in
the Session Laws of 1905. There were no substantial changes in
1907. The State Constitution contains nothing on the subject.
The chief statute is that of 1895, page 224, which is said to have
been substantially an adoption of the Wyoming Statutes. (Far-
mers' Irr. Dist. v. Frank (Neb.), 100 N. W. 286.)

Declaration of State Ownership. — The water of every natural
stream not heretofore appropriated is declared the property of the
public. (Comp. Stats. 6450.)

Oonceming Riparian Rights. — ^Riparian rights are not men-
tioned, but Compiled Statutes, 6451, provides: *'The right to
divert unappropriated waters of every natural stream for beneficial
use shall never be denied.*' The courts protect riparian rights
nevertheless. In the opinion of Judge Holcomb in the case of
Crawford County v. Hathaway (Neb.), 93 N. W. 781, decided by
the supreme court of Nebraska, it is said: ''The two doctrines
stand side by side. They do not necessarily overthrow each other,
but one supplements the other. The riparian owner acquires title
to his usufructuary interest in the water when he appropriates the
land to which it is an incident, and when the right is once vested
it cannot be devested except by some established rule of law. The
appropriator acquires title by appropriation and application to
some beneficial use and of which he cannot be deprived except in
some of the modes prescribed by law. The time when either right
accrues must determine the superiority of title as between conflict-
ing claimants." It seems that the Legislature of the State of
Nebraska had in 1889 abrogated the common-law rule of riparian
ownership in water, and substituted therefor the doctrine of prior
appropriation; but it was«held in the case cited that the act could
not, and did not, have the effect of abolishing riparian rights which
had already accrued, but only of preventing the acquisition of such
rights in the future. The court follows the California doctrine en-
forcing the common law of riparian rights. (Text, sec. 22.)

r52 STATUTES.

Preferenoes and Pro-rating. — ^In times of deficiency, domestic
use supplied first; next a^eultural uses. (Comp. Stats. 6451.)
The preference to domestic uses does not extend beyond that at
common law. (Crawford v. Hatha way, supra,)

Administration. — Water for the purpose of irrigation is de-
clared **to be a natural want" (Comp. Stats. 6473), and the works
therefor are declared works of internal improvement. (Comp.
Stats. 6456.)

The general control vests in a Board of Irrigation, consisting of
the Governor, Attorney General, and Commissioner of Public
Lands. (Comp. Stats. 6412.) They appoint a secretary who shall
measure all streams and gather data, etc. (Comp. Stats. 6425.)
The State is divided into two water divisions (Comp. Stats. 6409).
and the control of each division rests in an under-secretary ap-
pointed for each by the State board. (Comp. Stats. 6419 et seq.)
Within the divisions, the State board may, as necessity arises, create
water districts, the control of which rests with an under-assistant
for each district. (Comp. Stats. 6441, 6442.) The immediate
duty of administering the water supply rests with these under-
assistants, who may administer priorities, shut off water, make ar-
rests, etc. (Comp. Stats. 6443.) Owners must maintain headgates
and measuring devices for this purpose, and if they disobey or
obstruct the officials, are punishable criminally. (Comp. Stats.
6443, 6445.)

of Existing Priorities — ^Priorities existing at the
time of the passage of the act are to be determined as the Board
of Irrigation shall determine. (Comp. Stats. 6424.) Priorities are
to be recorded, when determined, in the office of the State board
(Comp. Stats. 6427), and a certificate to be issued to appropriators.
(Comp. Stats. 6429.) Appeal lies to court. (Comp. Stats. 6430
et seq.)

The rules adopted by the State Board of Irrigation in Nebraska
provide that there shall be, on ten days' notice, a hearing, presided
over by the secretary of the board, to receive testimony. Claim-
ants may appear in person or by att6mey, or may file claim affi-
davits, in which case they need not appear further. The record
in the case of each claim consists of the original notice filed with
the county clerk, a verified claim affidavit, any additional testimonj

NEBBASEA. 753

offered, points of law, etc., submitted in writing, and the decision
of the secretary. A failure to make claim constitutes an abandon-
ment of such claim. Further rules are adopted to cover practice
in matters of contest and to cover appeals.

This statute has been held not to be unconstitutional in this re-
spect as conferring judicial powers on executive officers. The
powers conferred are held administrative and not judicial. (Craw-
ford V. Hathaway, supra.)

Method of Apprc^riating. — ^Before commencing work, appli-
cation must be made to the State Board of Irrigation on a form
furnished by them. This must set forth the source, amount, loca-
tion of works, time required, time when actual application of the
water will be made (''which time shall be limited to that required
for the completion of the work when prosecuted with diligence"),
purpose, and if for irrigation, the land to be irrigated ; also further
details as board may require. If approved (the application may
be amended or cut down by the board, subject to appeal to court )^
the application is indorsed approved, the approval recorded and
the application is returned to the applicant, who may then go
ahead. (Comp. Stats. 6436.) He must file a map with the board
and begin work within six months.* (Comp. Stats. 6437, 6470.)
A failure of diligence in the work results in forfeiture of the
right. (Comp. Stats. 6470.) ''When the application has been per-
fected" the State board issues a certificate which is recorded with
the county clerk. (Comp. Stats. 6438.)

A similar procedure is provided for making changes later.
(Comp. Stats. 6436.)

• Relation, — Priority dates from the filing of the application.
(Comp. Stats. 6439.)

Reservoirs, — ^Dams over ten feet high require approval of State
board. (Comp. Stats. 6447, 6464.)

Measurement of Water. — No allotment for irrigation shall ex-
ceed one cubic foot per second for each seventy acres. (Comp.
Stats. 6428.) One cubic foot per second is*the standard measure-
ment, except where the miner's inch is already in use, and fifty
miner's inches are declared equal to one cubic foot per second.
(Comp. Stats. 6440.)

Wmter Righti~-48

754 STATUTES.

Feet (Payable to State Treamirer in Advance). — Statute of
1905, c. 167, p. 652. For filing, etc., applications to appropriate,
$2.00.

For copies of maps, etc., 40c. per hour taken in copying, etc.
For recording any other papers, $1.00 for first 100 words; and

15c. for each additional folio.
For certified copies of any paper, 15c. per folio for making the

copy, and $1.00 for certificate thereto.

Crimes. — ^Wasting artesian well water is subject to a fine.
(Comp. Stats. 6407.) Disobeying officials is a misdemeanor.
(Comp. Stats. 6407.) Damaging works or stealing water is a
crime (Comp. Stats. 6458), and numerous other police re^pilations.

Irrigation Districti. — ^Irrigation districts based on the Wright
Act of California are provided for in Comp. Stats. 1903, sec. 6476
et seq. ;*Cobbey's Ann. Stats., sec. 6825 et seq. ; Amended Stats.
1905, p. 648 et seq., cc. 165, 166. The constitutionality of these
acts was upheld in Board of Directors v. Collins, 46 Neb. 411, 64
N. W. 1086.

Eminent Domain. — Comp. Stats. 1901, art. 2, sec. 41, art. 3.
sec. 10, authorize condemnation for irrigation. The concluding
words of section 41, article 2, which is a substantial re-enactment of
the provisions contained in the latter part of the first section of
the act of 1877, are as follows: "Upon the filing of said petition
[for condemnation] the same proceedings for condemnation of snch
right of way for railroad corporations, the payment of damages
and the rights of appeal, shall be applicable to canals, irrigating
ditches, and other works provided for in this act.*'

Bliscellaneoiis. — ^Ditches for utilizing waste, seepage, swamp or
spring. waters governed by the same laws as ditches using waters
of natural streams. (Comp. Stats. 6452.) Concerning drainage
districts, see Laws 1907, p. 474. Concerning water-main districts,
see Laws 1907, p. 136. Concerning city waterworks. Laws 1907,
p. 120. Concerning appropriations on State lands, Laws 1907, p.
437.

The law of appropriation declared applicable to State lands.
(Comp. Stats. 1903, sec. 6448j Stats. 1907, p. 437.)

NEVADA. 755

NEVADA.

Nevada is reconstructing her laws concerning water in order to
advance irrigation. The law of appropriation was originally es-
tablished in Nevada, and the law of riparian rights rejected in.toto,
by the decisions of tlie courts independent of legislation {ante)^ and
this is the basis of Nevada's present laws; but a thorough syste-
matizing of detail is being provided which is entirely absent in
California. Water is scarce^ — even rare — ^in Nevada. The lan^ are
susceptible of excellent culture where water can be had, but Nevada
is mostly a series of dry, waterless deserts separated by bare moun-
tains. Hitherto the mountain ranges with their great mines have
furnished the paramount industry in Nevada, but now the energies
of the StiEite are turning to the development of the valleys by means
of irrigation. Everything is being done to aid the National Gov-
ernment in its plans under the act of Congress of June 17, 1902
(ante)^ and the work of building irrigation systems is proceeding
on a large scale. The recent mining development in Nevada has
caused every little stream of water, however small, to be of great
value, if not for irrigation, for mining, milling or domestic use.

References are to the Compiled Laws of 1900, section 354 et
seq.; Session Laws of 1901 (page 73), 1903 (page 18), 1905 (pages
66, 93, 193, 197). There is nothing in the State Constitution. The
laws of 1903 and 1905 were repealed in 1907, chapter XVIII,
page 30, and a new code substituted.

Declaration of State Ownership. — ^"'AU natural watercourses
and natural lakes and the. waters thereof which are not held in pri-
vate ownership belong to the State, and are subject to regulation
and control by the State.*' (Comp. Laws, 1900, sec. 354. To the
same eflPect, Stats. 1907, p. 30, sec. 1.) All waters not held in pri-
vate ownership are declared (by Stats. 1903, p. 24, sec. 1) to ** be-
long to the public,'* and the use thereof is a public use.

Concerning Riparian Rights. — The right to waters can arise
only by the method prescribed in the statutes, which is the method
of appropriation. (Comp. Laws 1900, sec. 359. The Statute of

756 STATUTES.

1907, page 30, section 7, says: **The prior right to the use of the
unappropriated waters of the natural watercourses and natural
lakes, as defined in this act, may be acquired in the manner pro-
vided in this act and not otherwige.") Riparian rights are hot ex-
pressly mentioned in any of the statutes. The Statute of 1903,
page 24, section 1, provides '^ben^ficial use shall be the basis, the
measure, and the limit of the right, ' ' a common phrase in the States
rejecting the California doctrine, of which Nevada i3 one. The
Statute of 1907, page 30, section 2, saves, however, all existing
rights to water, ** whether required by appropriation or otherwise."
The court follows the Colorado system rejecting riparian rights
in toto, (Text, sec. 23.)

AdminiBtration. — There is a State Board of Irrigation, con-
sisting of the Governor, Surveyor General, and Attorney General
of Nevada. (Stats. 1901, p. 72; Stats. 1907, p. 30, sec. 21, adding
the State Engineer as a member, to be its secretary.) This board
shall subdivide the State into water subdivisions, divisions and
districts (Stats. 1907, p. 30, sec. 22), and appoint water commis-
sioners, whose duty shall be to administer and apportion the water
according to priority. Pour districts have been established in Car-
son Valley. The Board of Irrigation shall make such rules and
fix such penalties as it shall seem advisable. (Stats. 1903, p. 18;
Stats. 1905, p. 66.) The State Engineer, appointed by the gover-
nor (Stats. 1907, p. 30, sec. 8), is in effect given power of keep-
ing a general lookout over all waters in the State (Stats. 1903, p.
18, sec. 5; Stats. 1907, p. 30, sec. 10), and shall co-operate with
the United States Reclamation Service. (Ibid,) Any person ob-
structing the officials in these matters is guilty of a misdemeanor.
(Stats. 1903, p. 18, sec. 20. See, also, Comp. Laws 1900, sees. 361-
373, possibly repealed by Stats. 1903, p. 18.)

Determination of Existing Priorities. — The State Engineer shall
prepare for each stream in the State of Nevada a list of existing
appropriations according to priority. For this purpose he shall
send blanks to existing claimants to be filled out and sworn to
(failure of claimant for 90 days to file statement is a crime — Stats.
1907, p. 30, sec. 16) and existing decrees of courts shall be col-
lected. An examination shall be made and record and maps pre-

NEVADA. . 757

pared by the State Engineer (in 1905-6* maps were made of
about 150,000 acres on Carson, Walker, Truckee and Humboldt
rivers), who shall prepare from these data a list of priorities and
within 30 days thereaftej issue certificates of priority. The list
shall be recorded with the county recorder. Within one. year par-
ties aggrieyed may bring an action against the State Engineer and
others in court. Expert engineers shall be employed by the court

■

and not by the parties. From the recorded list the water commis-
sioners shall administer the water. (Stats. 1903, p. 18; Stats.. 1907,
p. 30, sec. 14y et seq.) Iti 1905-6, 376 certificates were issued and
recorded on Carson river, and no appeals were taken.

Method of Appropriatinff.— (Statute of 1905, p. 66; Stats. 1907,
p. 30, sec. 24 et seq.) Application must be made to State Engi-
neer, ccmtaining details of plan, etc., and any additional facts re-
quired by the State Engineer, in a form prescribed by him, and
he shall record date of filing with him. In some newspaper, if the
application is satisfactory, the State Engineer publishes (once a
week for four weeks at expense of applicant — Stats. 1907, p. 30,
sec. 25) a notice of the application ** showing by whom made, the
quantity of water sought to be appropriated ; the stream from which
the appropriation is to be made and at what point on the stream ;
the use for which it is to be appropriated, and by what means,
which notice shall be published once a week for four weeks." (The
quotation is from the Statute of 1905.) Within thirty days after
completion of publication written protest may be filed with State
Engineer, who may take such action as he deems proper. *'But
vested rights to the use of such waters shall in nowise be lost,
prejudiced or impaired by failure to protest against an application
to appropriate the same under this act." (Stats. 1907, p. 30, sec.
25.) If the application is approved by him, he shall return it
indorsed to applicant, amended or cut down if necessary (subject
to suit against him in court within sixty days after the indorse-
ment). The State Engineer must refuse permit where no water,
or where it would injure others. Going on after rejection is a
crime. (Stats. 1907, p. 30, sees. 26, 27.) The appropriator must
then file a map with the State Engineer. Time for beginning and
completing work is left to the discretion of the State Engineer.
(Stats. 1907, p. 30, sec. 26.) The map must be filed within six
months after issuance of permit. {Ihid., sec. 28.) "Upon proof

758 . STATUTES.

to State Engineer that any application to appropriate water has
been perfected in accordance with this act, said State Engineer
shall issue to the applicant a certificate setting forth the name of
the appropriator, date, source,, purpose und amount of the appro-
priation and if for irrigation, a description of the land to be irri-
gated, which certificate shall within thirty days after its issuance
be recorded in the county in which the point of diversion of the
appropriation is, as well as in the county where the water is used,
in books especially kept for that purpose, and the fee for such
records shall be one dollar, payable by the party in whose favor
the certificate is issued." (Stats. 1907, p. 30, sec. 29.) The quo-
tation is from the Act of 1905.

Relation, — The priority of such appropriation shall date from
the filing of the application in the State Engineer's office. (See
Comp. Laws 1900, sees. 425-429, possibly repealed by Stats. 1903,
p. 18; Stats. 1907, p. 30, sec. 29.)

During May, 1905, .to December, 1906, there were 325 applica-
tions, being from •almost every county in the State; 54 were pro-
tested, 44 rejected, 42 perfected, and .130 remained under consid-
eration on December 31, 1906. (Report of State Engineer for
1905-6.)

Measurement of Water. — ^The maximum used to irrigate one
acre was fixed at three acre-feet per year, per acre in the Statutes
of 1903, p. 18. This was repealed in the Statutes of 1905, p. 66,
but re-enacted in Statutes of 1907, p. 30, sec. 5. The standard of
measurement is one cubic foot per second. (Comp. Laws 1900,
sec. 360; Stats. 1907, p. 30, sec. 6.)

The Statute of 1907, p. 4^6, provides for an investigation of the
duty of water in irrigation.

Orimes and Police Begulations. — ^Pollution of streams with sub-
stances injurious to health of persons, fish, or livestock, made a
misdemeanor. (Stats. 1903, p. 214.) Interfering with State
Engineer is a misdemeanor. (Stats. 1903, p. 18, sec. 20.) Di-
verting water to waste it is a misdemeanor. (Comp. Laws 1900,
sees. 430, 431.) Willfully obstructing flow of stream is a mis-
demeanor. (Comp. Laws 1900, sees. 432-434.) Throwing saw-

NEVADA. 759

dust into stream is a misdemeanor even though the stream is
not wholly within the State. (Comp. Laws, sees. 4879, 4881.)
Pollution a misdemeanor, excepting quartz-mills or pre reduc-
tion works. (Stats. 1907, p. 104.) Throughout the irrigation
acts are numerous criminal provisions in the nature of police
regulations, such as interfering with the water officials. (Stats.
1903, p. 18, sec. 20; Stats. 1907, p. 30, sec. 30.)

Irrigation Diatricts. — Irrigation districts based on the "Wright
Act of California are provided in Compiled Laws of 1900, sec-
tions 374-423.

L — "There is no absolute property in the waters
of a natural watercourse or natural lake. No right can be ac-
quired to such waters except a usufructuary right — ^the right to
use it, or to dispose of its use for a beneficial purpose." (Stats.
1907, p. 30, sec. 3.)

The quantity appropriated does not extend beyond what can
be economicaUy used. (Ibid,, see. 4.)

All appropriators for irrigation are appurtenant to the land
irrigated, and can be separated therefrom only by becoming ap-
purtenant to other land for irrigation by transfer after approval
of the State Engineer and publication of notice, subject to review
in the district court. (Stats. 1905, p. 66. But see Stats. 1907, jp.
30, sec. 26.)

Co-operation with the irrigation plans of the United States in
general is provicfed for in Statutes of 1901, page 72, and Statutes
of 1903, page 18. (Stats. 1905, pp. 66, 93, 197; Stats! 1907, p.
30.)

And State lands are made subordinate to the Federal plaujsi.
(Stats. 1905, p. 93.)

Qeneral provisions similar to California Civil Code, 1410-1422,
are contained in Compiled Laws, sections 356-358 and 424. To a

lar^e extent the later statutes supersede these provisions.

760

8TATUTB8.

The statute of 1907 follows in full:

NEVADA lEBIGATION ACT.

An Act to provide for the appropria-
tion, diBtribution and use of wa-
ter^ and to define and preserve
existing water rights, to provide
for the appointment of a State
Engineer, an Assistant State En-
gineer, and fixing their compen-
sation, duties and powers, defin-
ing the duties of the State
Board of Irrigation, providing
for appointment of Water Com-
missiohers and defining their du-
ties.

Approved February 26, 1907 — Stat-
utes 1907, p. 80.

Beetion 1, Appropriation of cer-
tain waters for public use. All nat-
uiral watercourses and natural lakes.
Slid th« waten thereof which are not
held in private ownership, belong to
the State and are subject to appro-
priation for beneficial }ises.

8eCm t. BsDiiting rights to be re-
spected. All existing rights to the
.UM of water, whether acquired by
appropriation, or otherwise, shall be
respected and preserved, and nothing
ill this Aet uiaU be construed as
enlarging, abridging or restricting
luch ri^ts.

Sec. S. None but usufructuary
nghts to he acquired. There is no
absolute property in the waters of a
natural watercourse or natural lake.
No right can be aeauired to such
waters, except an usufructuary right
— the right to use it, or to dispose of
its use -for a beneficial purpose.
When the necessity for the use of
water does not exist, the right to
divert it ceases, and no person shall
be permitted to divert or use the
waters of a natural watercourse or
lake, except at such times as the
water is required for a beneficial pur-
pose.

See, 4. No waste of water permit-
ted. No person shall be permitted
to divert or use any more of the
waters of a natural watercourse or
natural lake than sufficient, when
properly and economically used, to
answer the purpose for which the
diversion is made; nor shall any per-

son be pennitted to waste any mefa
water, and all surface water remain-
ing after use, unavoidable waata^
ejtcepted, shall be returned to the
channel by the persons diverting the
same, without unreasonable delay or
detention.

Sec, 6. Maximum quantity named.
The maximum quantity of water
which may hereafter be appropriated
for irrigation purposes in the State
of Nevada shall not exceed three aere-
feet per year for eaeh aere of land
supplied.

See. 6. Standard of measurement.
In all measurements of wat^r in this
State a cubic foot of water per sec-
ond of time shall be the standard of
measurement.

Sec. 7. Prior right, how acquired.
The prior right to the use ot the un-
appropriated Waters of the natural
watercourses and natural* lakes, as
defined in this Act, may be acquired
in \he manner provided in this Aet,
and not otherwise.

Sec. 8. Office of State Engineer
created — Salaty^ duties and ^^lifiea-
tions. The office of State Engineer
i.i hereby created. He shall be ap-
pointed by the (Governor, and shall
receive a salary not exceeding twenty-
four hundred ($2,400) douirs per
annum, payable in equal monthly in-
stallments by the State Treasurer
upon warrants drawn by the State
Controller. He shall keep his office
at the State Capitol. No person shall
be appointed a« such State Engineer
who does not hate such training in
hydraulic engineering and such prac-
tical skill and experience as shall fit
him for the position. He shall hold
his office at the pleasure of the Gov-
ernor, but his sneceesor diall, in all
cases, have the foregcnng qualifica-
tions and recommendations.

Sec. 9. Oath and bond of State
Engineer. Before entering upon the
duties of his office the State Engineer
shall take and subscribe an official
oath, such as is provided by law for
State officers, before some officer au-
thorized by the law of the State to
administer oaths, and shall file with
the Secretary of State said oath and
his official bond in the penal sum of
^ve thousand dollars, with not less

NEVADA.

761

than two sureties, to be approved by
the Governor of the State, and con-
ditioned for the faithful discharge
of his official duties, and for the de-
livery to his, successor, or other per-
son appointed by the Oovemor to
receive the same, all moneys, books,
and other property belonging to the
State then in his hands and under his
control^ or with which he may be
chargeable as such officer.

Sed. 10. Further dniiei of StaU
Engineer. The State Engineer shall
perform sueh duties as are prescribed
herein. He shall become conversant
with the State and the needs of the
State as to irrigation matters, and
in his reports to the Governor he
shall make such suggestions as to
the amendment of existing laws, or
the enactment of 'new laws, as his
information and experience shall sug-

fest; and he shall keep in his office
uU and proper records of his work,
observations and calculations; all of
which shall be the property of the
State. He shall co-operate with the
Secretary of the Interior in all work
of construction, operation,' mainte-
nance and management of irrigation
works constructed by the Secretary of
the Interior in and for the benefit
of Nevada, under an Act of Congress
of the United States, approved June
17, 1902, entitled '*An Act appro-
priating the receipts from the sale
and disposal of public lands in cer-
tain States and Territories to the
construction of irrigation works for
the reclamation of arid lands,'' and
shall in every way facilitate the work
of the Secretary of the Interior in
carrying out the provisions of said
Act in the State of Nevada.

See. 11. Auietant State Engineer ^
salary; other aetistants. The State
Engineer shall have the power to
employ one Assistant Engineer at
a salary not to exceed $1,800 per
annum, and to employ other assist-
ants at a total additional expense
not to exceed $1,000 per annum;
such Assistant Engineers and such
additional assistants to be paid out
of the money appropriated for that
purpose, on the certificate of the State
Engineer and the approval of the
State Board of Examiners. He may
also appoint as Assistant Engineers

and as additional assistants such per-
sons in the service of the United
States Geological Survey as may be
designated by the Secretary of the
Interior, or the Director of the United
States Geological Survey; but such
Assistant Engineers and such addi-
tional assistants shall be entitled to
no comi)en8ation from the State of
Nevada and no expense shall be in-
curred therefor, except as hereinbe-
fore provided.

See. Ig. Expenses of State En-
gineer and Assistant* When the
State Engineer, or his Assistant En-
gineer, is called away from his office
he shall be entitled to his actual
tiaveling expenses, which shall be
paid out of any money appropriated
for that purpose, on the certificate
of said State Engineer approved by
the State Board of Examiners.

See. IS. To make reports. The
State Engineer shall prepare and ren-
der to the Governor, bienally, and
oftener if required, full and true
reports of his work, touching all the
matters and duties devolving upon
him by virtue of his office, which re-
port shall be delivered to the Gover-
nor on or before the 31st day of
December of the year preceding the
regular session of t)ie Legislature.

Sec. 14. Method of appropriation
— What statement must iiwhide.
Such State Engineer shall prepare
for each stream in the State of
Nevada a list of the appropriations
of water according to priority, and
in order to make such list, he shall
enclose to each person having a claim
to the waters of such stream a blank
form, on which said claimant shall
present in writing all the particulars
showing the amounts and dates of
appropriations to the use of water of
said stream to which he lays claim;
the said statement to include the fol-
lowing:

His best information eonoeming:

The name and address of the claim-
ant.

The nature of the use on which the
Alaim for an appropriation is based.

The time of the commencement of
sueh use, and if distributing works
are required.

The year of beginning of survey.

762

STATUTES.

The year of beginning of construc-
tion.

The year when completed.

The year of beginning and comple-
tion of enlargements.

The dimensions of the ditch as or-
iginally constructed and as enlarged.

The year when water was first used
for irrigation or other beneficial pur-
poses, and if used for irrigation, the
amount of land reclaimed or irrigated
the first year; the* amount in sub-
sequent years, with the dates of rec-
lamation, 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.

Sec. 15. Oath of claimants. Each
of said claimants shall be required
to certify to his statements under
oath, and any officer authorized to
administer oaths is hereby author-
ized to administer such oaths.

Sec. 16, Claimant mu8t make
statement within 90 days. The failure
of any claimant to make such a sworn
statement within ninety days after
notice that such statement is required
by the State Engineer, shall be pun-
ishable as a mis&meanor on the com-
plaint of the State Engineer or any
of his assistants.

Sec. 17. Method of determining
lands susceptible of irrigation. It
shall be the duty of the State En-
gineer, or some qualified assistant,
as soon as practicable, to make an
examination of such stream and the
works diverting therefrom, said ex-
amination to include the measure-
ment of the discharge of said stream
unless adequate proof is available
from the measurements made by the
United States Government, and of
the carrying capacity of the various
ditches and canals diverting water
therefrom; an examination of the ir-
rigated lands, and an approximate
measurement of the lands irrigated,
or susceptible of irrigation, from the
various ditches and canals, which
said observations and measurements
shall be reduced to writing, jind made
a matter of record in his office, and
it shall be the duty of the State En-

gineer to make or cause to be made
a map or plat, on a scale of not less
than one inch to the mile, showing,
with substantial accuracy, the conne
of said stream, the location of each
ditch or canal diverting water there-
from, and the legal subdivisions of
lands, which have been irrigated or
which are susceptible of irrigation
from the ditches and canals already
constructed. In performing such
work the State Engineer or his as-
sistant may avail himself of the
works, records and information of
the United States Geological Survey.

See. 18. State Engineer to issve
certificate giving names, etc, of ap-
propriators. Within thirty days af-
ter the preparation of the list of
priorities of appropriation of the use
of waters of any stream, it shall be
the duty of the State Enginee^r to
issue to each person, association or
corporation, represented in such list,
a certificate to be signed by the State
Engineer, setting forth the name and
postoffice address of the appropriator,
the priority number of such appro-
priation, the amount of water ap-
propriated and the amount of prior
appropriations, and if such appropria-
tions be for irrigation, a descrip-
tion of the legal subdivisions of the
lands to which said water is to be
applied. And he shall also send such
certified list, by Registered mail, to
the County Becorder of the county
in which such appropriations shall
have been made, as well as to the
County Becorder of the county in
which the waters appropriated are
used, and it shall be the duty of said
County Becorder, within ten days af-
ter the receipt of such certificate, to
record the same in a book specially
prepared and kept for that purpose,
and the fee for such record shall be
fixed by the Governor, and shall be
allowed and paid by the Board of
Examiners out of funds in the
treasury applicable thereto.

Sec. 19. Aggrieved parties may
bring • action. Any pa^ty, or number
of parties acting jointly, who may
feel themselves aggrieved by the de-
termination of the State Engineer,
may bring an action in any court
having jurisdiction against such State

NEVADA.

763

Engineer and all persona having in-
tereets adverse to the party or par-
ties bringing the aetion, to have their
respective rights determined. Such
action must be brought within one
year after the record of such list
of priorities of appropriation has
been recorded. Such action shall be
tried as speedily as possible, and the
Court is hereby authorized to employ
a Hydraulic Engineer or other ex-
pert to examine and make report
under oath upon any subject matter
in controversy, the cost of such em-
ployment to be equitably apportioned
by the Court and charged against the
parties to the suit as costs.

8ec. go. Water Commissioners to
apportion water. The Water Commis-
sioners hereafter provided shall make
apportionment of the waters of such
stream according to the list of prior-
ities recorded as aforesaid, unless
such list be corrected by the judgment
of some court having jurisdiction of
the subject-matter.

Sec. fSl, State Engineer a member
and Secretary of State Board of Ir-
rigation. The State Engineer shall
be a member of the State Board of
Irrigation created by an Act of the
Legislature of the State of Nevada,
approved March 16, 1901, entitled
'^An Act to provide for the measure-
ment of streams, the survey of reser-
voir sites, the determination of ir-
rigation possibilities, and for the best
methods of controlling and utilizing
the water resources of the State of
Nevada in co-opezation with the
United States Geological Survey and
the United States Department of Ag-
riculture, and the Nevada Experiment
Station." The said State Engineer,
shall be the Secretary of said Board
of Irrigation, and shall keep the rec-
ord thereof in his office.

Sec. £9. Powers and duties of
said Board. The said Board of Ir-
rigation shall divide the State of
Nevada into such water divisions or
water districts as seem to it advis-
able, and may change the same from
time to time. It may appoint Water
Commissioners, whose duty it shall
be to measure and divide amongst
the appropriators the water of such
streams according to priority of right
and the amount to which each is en-

titled. It may make such rules and
regulations as it shall deem advisable
for the proper and economical ad-
ministration of the waters of such
streams.

Sec. IBS. Number and oompens€h
tion of Water Commissioners, The
Board of Irrigation shall determine the
number and compensation of the Wa-
ter Commissioners appointed under this
Act, and said Water Commissioners
shall be and act under the direction of
the State Engineer. The compensa-
tion of said Water Commissioners
shall be paid, upon the approval of
the Board of Irrigation, by the county
in which the work of such Commis-
sioners is performed, in the same
manner as other county bills are pre-
sented and aUowed.

Sec, id, Appropriators to obtain
permission from State Engineer — Ap-
plication to contain— Certain condi-
tions. Any person, association or cor-
poration desiring to appropriate any
of the public waters, or to change the
place of diversion or manner of use
of water now appropriated, shall be-
fore performing any work in connec-
tion with such appropriation make an
application to the State Engineer for
permission to make the same. Said
application shall set forth the name
and postoffice address of the appli-
cant, the source from which said ap-
propriation shall be made, the amount
thereof, location of proposed works
in connection therewith, the purpose
for which the appropriation is de-
sired, and if for irrigation a de-
scription of the land to be irrigated
and the area thereof, and any ad-
ditional facts required by the State
Engineer. On receipt of this applica-
tion, which shall be of a form pre-
scribed by the State Engineer and
to be furnished by him without cost
to the applicant, it shall be his duty
to make a record thereof in his office,
and to carefully examine the same
to ascertain whether it sets forth all
facts necessary to determine the na-
ture and amount of the proposed ap-
propriation. If the application be
defective it shall be the duty of the
State Engineer to return the same to
the applicant for correction, and sixty
days shall be allowed for the refiling
thereof. If refiled, corrected in

764

STATUTES.

proper for in, within such time, the
applicBtion shall, upon being ac-
cepted) take priority as of date of
original filing subject to complianee
with the further provisions of the
law and the regulations thereunder.

Sec. S5, Publication, when neces-
sary— Vested rights never to he lost.
If not corrected as required, no fur-
ther proceedings shall be had on such
application, but when filed in com-
pliance with this Act, the State En-
gineer shall within thirty days at the
expense of the applicant, to be paid
in advance, publish or cause to be
published in some newspaper having
a general circulation within the
boundaries of the river system or
water system or water source from
which said appropriation is to be
made, a notice of the application,
showing by whom made; the quan-
tity of water sought to be appro-
priated; the stream from which the
appropriktion is to be made, and
at what point on the stream; the use
for whicn it is to be appropriated,
and by what means, which notice
shall be published once a week for
four weeks. Any person, corporation
or association interested may, at any
time within thirty days after com-
pletion of the publication of said
notice, file with the State Engineer
a written protest against the granting
of said application, stating the rea-
sons therefor, which shall be duly con-
sidered by said Engineer. He may,
in his discretion, hear evidence in
support of 'or against such applica-
tion and shall take such action there-
on as he may deem proper and just.
But vested rights to the use of such
waters shall in nowise be lost, pre-
judiced or impaired by failure to
protest against an application to ap-
propriate the same under this Act.

Sec, es. State Engineer to refuse
application. when — To approve appli-
catwiif when. If. there is no unap-
propriated water in the source of
supply or if such change of place of
diversion or manner of use will in
any substantial way invade or impair
the rights of other appropriators
the State Engineer shall refuse such
appropriation, endorse his refusal
upon the application, make a record

of his refusal and endorsement in his
office, and return the application »
endorsed to the applicant, who shall
not prosecute the work under his ap-
plication so long as such refusal shall
be in force, under penalty of being
deemed guilty of and punished for
a misdemeanor. If there is nnap*
propriated water in the source of
supply named and the appropriation
is not detrimental to the public wel-
fnre or the proposed change of place
of diversion and manner of use will
not invade or impair the rights of
other appropriators, the State En-
gineer shall approve the application
and set a date prior to which work
of diversion and appropriation must
be begun and a date prior to which
such work must be completed, en-
dorse such approval upon the appli-
cation, make a record of such ap-
proval and endorsement in bis oiBee,
and return the application so en-
dorsed to the applicant, who shall,
on receipt thereof, be authorised to
take such measures as may be neees-
sary to perfect such appropriation;
provided, however, that the State En-
gineer may approve an application
for a less amount of water than that
named in the application.^ Any per-
son changing his place of diveraon
or manner of use as specified in this
Act shall not thereby lose any priority
of right upon the stream he may have
heretofore acquired.

Sec. 27. Aggrieved parties swjf
"bring suit, when — May appeal. Any
party feeling himself amieted by
the action of the State Engineer in
refusing his application in whole or
in part, or in allowing snch appli-
cation against his protest, may bring
an action, in any court having juris-
diction of the matter, against the
State Engineer to compel him to re-
verse or modify his decision, and all
persons having interests adverse to
the party or parties bringing such ac-
tion shall be joined therein with the
State Engineer as defendants. Snch
action, must be commenced within
sixty days after notice in writing of
the decision by the State Engineer
complained of, and shall be begnn
and prosecuted in all respects like the
ordinary civil action in this State,

NEVADA.

765

and shall be tried de novo by the
court. Any party feeling himself
Aggriewed by the decision of the
court may have the same reviewed,
in any court having apjpeUate juris-
diction of such decision, by appeal
or -writ of error in the manner pro-
vided by law.

Sec, S8, Applicant must furnish
map. Upon - approval of an applica-
tion in whole or in part, the appli-
cant shall send * to the State En-
gineer within six months thereafter
a map on a scale of not less than
two inches to the mile, showing the
location of the works necessary to
perfect the appropriation, the source
of appropriation, and if for irriga-
tion, the land upon which the water
is to be applied, which map shall be
filed in his office.

. Sec, 29. Engineer to issue certifi-
cate— Fee for recording. Upon satis-
factory proof being made to* the
State Engineer that any application
to appropriate water has been per-
fected in accordance with the provi-
sions of this Act, said State En-
gineer shall issue to the applir>ant a
certificate setting forth the name of
the appropriator, date, source, pur-
pose and amount of the appropria-
tion, and if for irrigation, a de-
scription of the land to be irrigated,
which certificate shall, within thirty
days after its issuance, be recorded in
the county in which the point of di-
version of the appropriation is, as
well as in the connt^ where the water
is used, in books specially kept for
that purpose, and the fee for such
records shall be one dollar ($1), pay-
able by the party in whose favor the
certificate is issued. The priority of
such new appropriation shall date
from the filing of the appUoation in
the State Engineer's office.

Sec. SO, Misdemeanor for inter-
fering with water officers. Any per-
son interfering with, obstructing or
resisting the State Engineer, As-
sistant Engineer or any Water Com-
missioner, in the performance of his
duty or duties as prescribed by this
Act, or by the rules or regnkttions
adopted by the Board of Irrigation,
shall be deemed guilty of a misde-
meanor.

Sec, SI, Punishment. Any act
which is made a misdemeanor by this
statute shall be punishable by fine
not exceeding five hundred dollars
($500), or by imprisonment in the
county jail not more than three. (3)
months, or by both such fine and im-
prisonment in the discretion of the
Court.

Sec. BS. Bepeal of previotts Acts.
Chapter IV of the Statutes of the
State of Nevada entitled ''An Act
providing for the co-operation of the
State of Nevada with the Secretary
of the Interior of the United States
in the construction and administra-
tion of irrigation works for the
reclamation of arid lands in the State
of Nevada, for the measurement, ap-
propriation and distribution of water,
determination of water rights, pre-
serving and certifying records there-
of, creating officers for the enforce-
ment hereof, defining the tenure of
office, powers and duties and fixing
their compensation; providing for
penalties for infringements hereof,
and enacting a standard measure of
water and conferring upon the Secre-
tary of the Interior such rights and
powers under the laws of Nevada as
are necessary to enable him to carry
out and execute an Act of the Con-
gress of the United States, approved
June 17, 1902, entitled 'An Act ap-
propriating the receipts from the sale
and disposal of public lands in cer-
tain States and Territories to the con-
struction of irrigation wowks for the
reclamation of arid lands' " (ap-
proved February 16, 1903), and Chap-
ter XL VI of the Statutes of the
State of Nevada entitled "An Aet
amendatory of and supplemental to
an Act entitled 'An Act providing
for the co-operation of the State of
Nevada with the Secretary of the In-
terior of the United States in the
construction and administration of ir-
rigation works for the reclamation of
arid lands in the State of Nevada,
for the measurement, appropriation
snd distribution of water, determina-
tion of water rights, preserving and
certifying records thereof, creating
officers for the enforcement hereof,
defining the tenure of office, powers
and duties and fixing their compen-
sations ; providing * for penalties for

766

STATUTES.

Infringements hereof, and enacting
a standard measure of water, and
eonferring upon the Secretary of the
Interior such rights and powers under
the hiws of Nevada as are necessary
to ena];)le him to carry out and exe-
cute an Act of the Congress of the
United States, approved June 17,
1902, entitled "An Act appropriat-
ing the receipts from the sale and
disposal of public lands in certain
States and Territories to the con-
struction of irrigation works for the

reclamation of arid' lands.

9 f »

ap-

proved February 16, 1903 '* (ap-
proved March 1, 1905), and all Acts
and parts of Acts in conflict with
this Act, are hereby repealed.

Sec, 3S, Appropriation. The sam
of fifteen thousand dollars is hereby
appropriated to carry out the provi-
sions of this Act.

Sec. S4, In efect. This act shall
take effect from ancf after its jmssage
and approval.

Nevada occupies a unique position in its treatment of the law
of waters. It is now one of the staunchest supporters of the
Colorado system, rejecting the common law of riparian rights
and upholding the State property view and the law of appro-
priation as the sole rule governing waters. But formerly the
court held the other way, and it was on the Nevada case of
Van Sickle v. Haines, 7 Nev. 249, that the California court greatly
relied in Lux v. Haggin, 69 Cal. 255, 10 Pac. 674, in establishing
the California doctrine recognizing riparian rights. Nothing
could be more yehement in support of the California doctrine
than the opinion of Chief Justice Lewis in the Van Sickle case,
wherein he said:

■ 'Although it has sometimes been suggested that the unoccupied
lands belong to the several States in which they may be located,
the suggestion has never received the serious sanction of states-
men, or the courts of the country If , as we have shown,

the watev naturally flowing through land is an incident or 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? It might as well be argued, and indeed, it can
be maintained with as much plausibility, that it has not .the right
to the growing timber upon it, which is not more a' feature of the
soil itself than a natural watercourse running through it

**It might as well be said that the courts can deprive him of
the land itself by holding that it did not pass by the patent, as
to rule 80 respecting that which is universally^ admitted and held
to be an inseparable and valuable incident to it. There is no
rule of law that would not be more applicable to our condition
than that which would simply justify judicial robbery.'*

Nevertheless the Nevada court, in Beno etc. Works v. Steven-
son, 20 Ney. 269. 19 Am. St. Rep. 364, 21 Pac. 317, 4 L. R. A. 60.

NEVADA. 767

declared that the common law of riparian rights was utterly
iinsuited to conditions in Nevada, and does not exist there (as
quoted in the text). In a later case (Ronnow v. Delmue, 23
Nev. 29, 41 Pac. 1074) it was declared that ** otherwise the right
to the use of water would rest upon a very frail foundation."
And in another case upon the subject the court was very em-
phatic, saying:

**The doctrine of riparian rights is so unsuited to the condi-
tions existing in the State of Nevada, and is so repugnant in its
operation to the doctrine of appropriation, that it is not part of
the law, and does not prevail here." (Walsh v. Wallace, 26
Nev. 299, 99 Am. St. Rep. 692, 67 Pac. 914.) And in a more
recent case :

"As time passes it becomes' more and more apparent that the
law of ownership of water by prior appropriation for a beneficial
purpose is essential under our climatic conditions to the general
welfare, and that the common law regarding the flow of streams
which may be unobjectionable in such localities as the British
Isles and the coast of Oregon, Washington, and northern Cali-
fornia, where rains are frequent and fogs and winds laden with
mist from the ocean prevail and moisten the soil, is unsuitable
under our sunny skies, where the lands are so arid that irriga-
tion is required for the production of the crops necessary for
the support and prosperity of the people. Irrigation is the life
of our important and increasing agricultural interests, which
would be strangled by the enforcement of the riparian principle."
Twaddle v. Winters (Nev.), 85 Pac. 280.

The Nevada court has been sharply criticised for this change
of position (in Farnham on Waters, sec. 654), but it paved the
way for the statutes above given.

768 STATUTES.

NEW MEXICO.

References are to Laws of 1905, page* 270, chapter 102 (Re-
pealed in Laws 1907, p. 71, c. 49), Laws of 1905, page 284, chap-
ter 104, and Laws of 1907, page 71, chapter 49. Previous to
these statutes, the laws of New Mexico were, in this connection,
contained in the Revised Statutes of 1903, chapter 44.

Declaration of State Ownership. — All waters are declared to
belong to the public. (Stats. 1907, c. 49, p. 71, sec. 1.)

Concerning Riparian Bights.— The statute (Stats. 1905. p. 270)
contains the usual provisions that no one shall be denied the
right to appropriate (sec. 1) ; that beneficial use shall be the
basis, the measure and the limit of all rights to the use of water
(sec. 26, Stats. 1907, c. 49, p. 71, sec. 2) ; that priority gives
the better right. (Sec. 2.) The courts follow the Colorado sys-
tem, rejecting the common law of riparian rights in toio, (Cases
cited in sec. 23 of text.)

Administration, — The office of territorial irrigation engineer
is created with the usual duties and powers. (Stats. 1907, p. 71,
sec. 4 et seq.) The statute of 1905 divides the territory into
six specified water divisions, with one water commissioner for
each. (Stats. 1905, sec. 23.) A Board of Control is established
consisting of the territorial irrigation engineer and the water
commissioners. (Stats. 1905, sec. 24.) The general supervision
is in the territorial engineer. (Stats. 1907, p. 71, sees. 4 et seq.,
12.

Determination of FiTisting Priorities. — The determination rests
with the Board of Control, subject to review in court. (Stats.
1905, sec. 29.) The territorial irrigation engineer makes a survey
after due notice, and takes all available testimony. (Stats. 1905,
sec. 29 et seq.) Provisions are made for contests. (Stats. 1905.
sec. 33 et seq.) The Board of Control issues a certificate, one
copy of which is recorded with the county clerk and the other
in the office of the territorial irrigation engineer. (Stats. 1905,

NEW MEXICO. 769

see. 36.) This system in the Statute of 1905 is replaced in the
Statute of 1907, page 71, section 19 et seq., by proceedings in
court at suit of attorney general.

Method of Appropri$ting. — A general method applicable to all
pursuits was established in chapter 104 of the Laws of 1905.
This consists in filing notice in the office of the probate clerk
of the county where the stream lies, and resembles more the
original method as in force in California than it does the new
method under the irrigation codes. The work must begin within
six months after filing notice and be completed within eighteen
months. (Ibid,) Application to the territorial engineer is not
required except in cases of dams and dykes (sec. 19 of c. 102),
and not even in those if the cost of the work is to be less than
$2,000 (sec. 19), and even where required the territorial engineer
has much discretion to waive requirements in favor of projects
which he does not consider of great importance. (Sec. 19.) This
would seem the only one of the recent statutes which keeps in
view those who intend to appropriate water only on a small
scale.

The statute of 1907, below given, provides the usual irrigation
code procedure.

Measurement of Water.*— The second-foot and the acre-foot are
the units for time and volume respectively (Stats. 1905, sec. 3) :
and the miner's inch is declared equal to one-fiftieth of the second-
foot. (Stats. 1905, sec. 3.) The maximum allowed for irrigation
shall be one second-foot for seventy acres irrigated. (Stats. 1905,
sec. 4.)

^ MijM^llaneous. — ^Fees of the territorial engineer are to be fixed
by the Board of Control. (See Stats. 1907, p. 71, sec. 9, concern-
ing fees.) Non-user for four years causes forfeiture of right.
(Stats. 1905, sec. 5.) An unusual provision is that waterworks
for private use are exempt from taxation. (Stats. 1905, sec. 8.)

***<«^^ Domain*— Laws 1907, p. 71, sec. 3.

Irrigation Law of 1907. — Chapter 49. Only thirty-two notices
were filed under the laws of 1905. The laws of 1905 were re-
placed in 1907, and a code adopted, based on the draft of Mr.

Water RightB^9

770

STATUTES.

Bien, of the reclamation service, and resembling the codes of North
and South Dakota and Oklahoma. Some references to this stat-
ute are included in the above analysis, and we add herewith the
contents of the Statute of 1907.

CONTENTS.

An Act to conserve and regulate the
use and distribution of the waters
of New Mexico; to create the office
of territorial engineer; to create a
board of water commissioners, and
for other purposes. H, B. No, ISO .
Approved March 19, 1907.

Sec. 1. All natural waters in New
Mexico belong to public.

Sec. 2. Beneficial use basis of
measurement of right to
use water. Right to be
governed by priority.
When to date.

Sec. 3. Who may exercise right of
eminent domain to acquire
rights-of-way for ditches,
etc. Engineers of U. S.
Territory and others may
enter upon public and
private lands, when. Lia- ,
bility for damage.

Sec. 4. Creating office of Territorial
engineer. How appointed.
Term of office. Subject
to removal for cause.
Duties. Salary, etc.
Office, where. Not to en-
gage in private practice,
except.

Sec. 5. May employ assistants.
Salaries and expenses how
paid.

Sec. 6. To give bond and take oath.

Sec. 7. Claim for services, how
paid.

Sec. 8. Yearly report to governor.
When to be rendered and
what to include.

Sec. 9. Fees to be received by ter-
ritorial engineer.

Sec. 10. Records of office public.
What to consist of.

Sec. 11. Territorial engineer to make
rules necessary.

Sec. 12. Engineer to have supervi-
sion'of apportionment of
water in Territory.

Sec. 13.
Sec. 14.

Sec. 15.

Sec. 16.
Sec. 17.

Sec. 18.

Sec. 19.

Sec. 20.

Sec. 21.

Sec. 22.
Sec. 23.

Sec. 24.

Sec. 25.

Sec. 26.

Territory to be divided into
stream systems.

Engineer to appoint water
masters. Duties. Num-
ber.

Appeal from decision of
water master. How made
and to whom.

Bate of pay for water mas-
ter. How paid.

Report of water master.
To whom and what to
consist of.

Engineer to assist eountj
commissioners in miscel-
laneous work.

Engineer to make hydro-
graphic surveys.

Attorney general to insti-
tute suit, when and for
what purpose. Proviso.

Procedure in suits for de-
termination of water
rights. May be sub-
mitted to jury or referee.

Appropriation * ' Hydr»-

graphic Survey Pund.^'

Copy of decree to be fille<l
in office of engineer.
Contents of decree.

Method of making applica-
tion, etc., for water right.'
Engineer may require ad-
ditional information,
when. Excess of water.

Date of application to go
on record. If applica-
tion is defective as to
form, method of correc-
tion. Conditions govsni-
ing priority rights. Pro-
viso.

Mode of procedure if ap-
plication is correct. Pnb-
lication of notice. Proof
of publication to be filed.

NEW MEXICO.

771

Sec. 27. Further steps necessary to
secure water rights.
Proviso.

Sec. 28. When engineer may reject
application.

Sec. 29. Time in which work must
be completed. Proviso.

Sec. 30. Inspection of completed
work. When and how.
Proviso.

Sec. 31. Certificate of approval.
When issued.

Sec. 32. If works unsafe, engineer
to notify. Fees for in-
spection how and by
whom to be paid. Pro-
viso.

Sec. 33. Misdemeanor to use words,

etc., until notice is re-

* ceived by engineer that

same are or have been

made safe.

Sec. 34. Inspection of completed
work. How and when
made.
Time may be extended.
How and length of time.
Permit may be assigned.
Binding if recorded.
Proviso.
Question of fact may be
submitted to jury in suit.
Legal advisers of territorial

engineer.
When water' in excess is
used or stored, owner re-
quired to deliver to other
on application.

Sec. 40. If United States notified
that water is to be
utilized, no applications
to be considered. Pro-
viso.

Sec. 41. Standard of measurement.

Sec. 42. When party securing per-
mit forfeits.

Sec. 43. Limitations of amount of
water to be allowed.

Sec. 44. Water appurtenant to land
cannot be transferred.
Proviso. Applicant to
to publish notice.

Sec. 45. Method of changing use of
water already secured.

Sec. 46. Ditch owners to construct
and maintain measuring
devices. Penalties for dis-
bursing same.

Sec. 47.

Sec.

35.

See.

36.

Sec.

37.

Dec

38.

Sec.

39.

Sec.

Sec

Sec.

50,

Sec.

51,

Sec.

52,

Sec.

53,

Sec.

54,

Sec.

55.

Sec. 56.
Sec. 57.
Sec. 58.
Sec. 59.
Sec. 60.

Sec. 61.

Sec. 62.

Sec. 63.
Sec. 64.

Sec. 65.

Sec. 66.

Various acts constitute mis-
demeanors. Engineer or
authorized assistant may
make arrest. Dutijes.
Engineer and assistants
may enter on public and
private property for car-
rying out their duties.

Unauthorized use of waTer
a misdemeanor.

Owners to construct bridge.
County commissioners may
construct and collect cost.

Unlawful to place or main-
tain obstructions in ditch.

Penalties for violations of
sections of this act.

Liens in this act superior
to other incumbrances.

In case of seepage, others
may apply for water.
When.

Rights-of-way granted for
ditches, etc.

Conditions under which land
may be transferred from
Territory to other in
future. Lands granted to
U. S. without charge.

Appropriation for salaries,
etc.

Local customs and rules
to stand.

When water masters are
to be appointed.

This act not to impair
existing vested rights.

Transfer of water from
one stream to another,
when permissible an(l
manner of replacement.

When works enlarged, party
doing work to enjoy
benefit.

Board of water commis-
sioners created. Must
take oaths. Date of
meetings.

Duties.

Duties of engineer in cases
of appeal.

Verdict of board to be
final, unless of appeal to
district court.

Duties of board in cases
of appeal to district

772

STATUTES.

See. 67.

06C. Oo.

See. 69.

eoYirt. Costs, how col-
lected.

Board maj adopt seal.
Misdemeanor to fail to
answer summons of
board. Penalty.

Salaries of board. Expen-

Clerk to be appointed by
board. Salary.

\
See. 70. Granting rights - of - way

over territorial landa.

See. 21. Permits, etc., to be filed,
where.

See. 72. Unlawful to divert waters,
to other valley. Penal-
ties for violation of this
seetioB.

Sec. 73. Bepeal wollim.

NORTH DAKOTA. 773

NOBTH DAKOTA.

The legislation in North Dakota was formerly modeled upon the
Civil Code of California (Stats. 1901, p. 268). The courts follow
the California doctrine upholding riparian rights.

In the session of the legislature of 1905, a statute was adopted
after discussion in the North Dakota Irrigation Congress. This
statute is Senate Bill No. 1, entitled ** North Dakota Irrigation
Code."

Declaration of State Ownership. — All waters from all sources
belong to the public (sec. 1). ''All flowing streams and natural
watercourses shall forever remain the property of the State for
mining, irrigating and manufacturing purposes." (Constitution,
art. XVII, sec. 2^0. See Bigelow v. Draper, 6 N. Dak. 152. )

Concerning/Riparian Bights. — All waters except navigable
streams are subject to appropriation (sec. 1). Beneficial use shall
be the basis, the measure and the limit of right ; priority gives the
better right (sec. 2).

In the revised codes (Civ. Code, sec. 4798) appears the statute
borrowed from Colorado (see ante, sec. 23) that all landowners
on the bank of a stream have the right to the use of the water for
irrigation.

The court upholds the common law of riparian rights. (See
text, sec. 22.)

Administration. — The use of water is a public use (sec. 3). The
office of State Engineer is created with powers of general super-
vision over the State* (sec. 5). He shall keep records (sec. 11),
and make rules subject to modification by vote of the board of
water commissioners (sec. 12). He shall make surveys of streams
(sec. 14), and co-operate with the United States Reclamation Ser-
vice (sec. 14) ; and may inspect the works of appropriators at any
time (sec. 27).

The whole State is divided into four water divisions (sec. 37) ;
with one commissioner for each division (sec. 38) ; commissioner

774 STATUTES.

having general control over the waters within his division (see. 39) ;
the divisions may be subdivided by the State Engineer into wat^r
districts (sec. 42), with one water master for each district, and he
shall have immediate charge of the >vaters (sec. 43). A board of
water commissioners is established, consisting of the water com-
missioners and the State Engineer, and this board has general
supervision over the whole State (sec. 40).

Police regulations consist in such provisions as that use of un-
safe works is a misdemeanor (sec. 28) ; the failure to maintain a
measuring device, likewise (sec. 52) ; interference wuth officials
(sec. 53) ; or any acts in general Avhich contravene the statute (sec.
54). These are all misdemeanors and the penalty therefor is pro-
vided in section 57.

Determination of Existing Priorities. — On completion of the
survey of any stream system the State Engineer delivers the data
to the Attorney General. Suit is brought by the Attorney General
within sixty days, unless already begun by private parties, in
which case the Attorney General may intervene on behalf of the
State (sec. 13). All claimants are made parties and bear the cost
between them (sec. 16). A referee may be appointed to take the
evidence (sec. 33). A decree is rendered, and two certified copies
thereof are given to the appropriator, who files one with the State
Engineer and the other in the office of the water commissioner of
the division in which the stream lies (sec. 19).

Method of Appropriating. — Before commencing work, applica-
tion must be made to the State Engineer on a form prescribed by
him, with any maps he may demand. Additional information may
be required by him concerning works that are to exceed five hun-
dred cubic feet per second, or concerning dams over thirty feet
in height (sec. 19). An examination of the application, correc-
tions thereof and refiling, follow (sec. 20). Notice is then pub-
lished once a week for four weeks and proof of publication made
(sec. 22). If approved, the approval is indorsed upon the appli-
cation, which constitutes a permit (sec. 22). Prom the refusal of
the State Engineer to approve the application, appeal lies to court
if taken wnthin sixty days (&ec. 23).

Prosecution of the work must continue with diligence (sees. 2
and 24). One-fifth of the work must be completed in one-half the

NORTH DAKOTA. 775

time allowed (sec. 24) ; and the completion must be within five
years (sees. 20, 22), unless the time is extended (not over three
years) by the State Engineer (sees. 24, 30). A notice of com-
pletion is filed with the State Engineer, who makes an inspection
(sec. 25), and issues a certificate of completion (sec. 26). Actual
application of the water to beneficial use must follow within four
years (sec. 22), unless the time is extended by the State Engineer
for a time not over two years (sec. 30). Notice is given to the
State Engineer of the actual application, and he makes an in-
spection and issues the final certificate, which is called a license
(sec. 29).

A change in the point of diversion msLy be made only with
the approval of the State Engineer (sec. 23).

Relatian. — The right relates back to date of filing application in

the office of the State Engineer (sec. 2.)

Measurement of Water. — The second-foot and the acre-foot are
the standards of measurement for time and volume respectively
(sec. 47). The miner's inch is declared equal to one-fiftieth of a
second-foot (sec. 47). The maximimi allowed for irrigation shall
not exceed one second-foot for each eighty acres irrigated (sec.
49).

Fees of State Engineer are provided for in section 10.

Bliscellaneous. — Canal companies are trustees for consumers
(sec. 19). Non-user for three years causes loss of right (sec. 48).
Provisions concerning change of purposes of use are provided for
in section 51. Concerning seepage water, section 49; concerning
State lands, section 60.

A transfer of the water right for use on diflPerent lands may
be made only on application to the State Engineer and publica-
tion of notice (sec. 50).

The assignments of water rights or of permits must be recorded
in the office of the State Engineer (sec. 31).

Statute of 1907, page 444, chapter 271, defines a watercourse.
(Quoted, ante, sec. 95.)

Concerning water users associations, see Statute 1905, chapter
193.

776 STATUTES.

OKLAHOBIA.

References are to the Laws of ia05, page 274, chapter 21. The
law previous to the passage of this act is contained in Revised
Statutes of 1903, chapter 44.

Oonceming Riparian Rights. — The act contains, in section 1,
provisions similar to those of South Dakota, given below. The
court, in Markworth v. City of Guthrie (Okla.), 90 Pac. 26, as-
sumed the existence of riparian rights.

Administration. — Use of water is declared a public use. (Sec.
2.) The office of the territorial engineer is mentioned throughout
the act ; but no such office was created, and the duties of the terri-
torial engineer are to be performed by the secretary of the Board
of Agriculture for the present. (Sec. 54.)

The powers and duties of the territorial engineer are similar to
those contained in the Sputh Dakota act of this same year, out-
lined below. The territorial engineer has the power to subdivide
the territory into water districts, appointing a water master for
each district. (Sec. 32 et seq.) For obstructing the officials or
failure to maintain the proper devices the usual punishments are
specified (in sec. 43).

Adjustment of Existing Priorities. — ^The territorial engineer,
having made a complete survey of a stream (sees. 4, 6), furnishes
the results to the attorney general, who, within sixty days, brings
suit, unless suit is already brought by private parties. (Sec. 5.)
A referee may be appointed by the court. (Sec. 23.) A decree
stating specified details is filed with the territorial engineer and
also recorded in the county where the stream lies. (Sec. 8.)

Method of Appropriating. — ^Before commencing work, an ap-
plication for a permit must be made to the territorial engineer in
the usual way. (Sec. 10.) Notice thereof is published (sec. 11) ;
and the approval indorsed thereon. (Sec. 12.) Beginning work
without permit from the territorial engineer is a misdemeanor.

OKLAHOMA. 777

(Sec. 40.) The work must be prosecuted with diligence (sec. 14),
and one-fifth thereof must be completed in one-half the time spec-
ified for the completion thereof, which is five years (sec. IQ), un-
less the territorial engineer specifies a shorter time (sec. 12), or
a longer time, not exceeding three years additional. (Sec. 20.)
Notice of completion . being filed with the territorial engineer, he
makes an inspection (sees. 15 and 17), and issues a certificate of
completion. (Sec. 16.) Actual application and use of the water
must be made within four years after completion, unless the terri-
torial engineer specifies a shorter time, or a longer time not ex-
ceeding two years additional. (Sec. 20.) On or before the date
set for actual application of the water to beneficial use, the terri-
torial engineer makes an inspection, and if satisfactory, issues
a license (sec. 19), which is the final certificate issued.

Relation. — The doctrine of relation is preserved (in sections 1
and 10), the priority of right relating back to the original appli-
cation for permit.

•

Measurement of Water.— The second-foot and the acre-foot are
the units of time and flow respectively. (Sec. 27.) One second-
foot for seventy acres is the maximum allowed for irrigation. (Sec.
29.)

Miscellaneons. — Fees of the territorial engineer are provided
for in section 53. All liens provided for in this act shall be su-
perior in right to all mortgages or other encumbrances hereafter.
(Sec. 44.) The water right is appurtenant to the land (sees. 1,
21), and transfer thereof is restricted and can be made only upon
application to the State Engineer and publication of notice. (Sees.
121, 30.) Provisions concerning water or canal companies are con-
tained in sections 9, 25. Non-user for two ye^trs causes forfeiture.
(Sec. 28.)

778 STATUTES.

OSEOON.

Originally the Statutes of Oregon (Hill's Annotated Laws 1892,
page 1930, sections 1-9; Bellinger and Cotton's Annotated Codes,,
title XI) had been modeled upon the Civil Code of California.
In the Laws of 1899, page 172, a more enlarged treatment was
given the subject, but still resembling the California code.
(Amended Statutes of 1901, page 136; 1903 (special session), page
25.) But in 1905, page 401, a new statute was passed modeled
rather upon the recent statutes of the arid States. The courts of
Oregon uphold the California system, recognizing the common law
of riparian rights. (See sec. 22, text.) There is nothing in the
State Constitution upon the subject. There was no legislation upon
the subject in 1907.

The Oregon Statute of 1905 is in part as follows :

*' Section 1. Appropriation of Water, Any person" association,
or corporation hereafter intending to acquire the right to the benefi-
cial use of any waters for the reclamation of arid lands, shall post
in a conspicuous place at the proposed point of diversion a written
or printed notice containing the name of such applicant and the
stream or other source of supply of such water, a brief description
of the 'point of diversion and the nature of the beneficial use to
which such waters are to be applied, and the exact date of posting,
and shall within fifteen days thereafter file in the office of the
clerk of the county in which such notice is posted, a duplicate
thereof so attested, and shall within thirty days thereafter file in
the office of the State Engineer a certified copy of such duplicate
as filed in the office of the county clerk, which shall be accompanied
by such information, maps, field-notes^ plans and specifications as
may be necessary to show the method of construction. All such
maps, field-notes, plans, and specifications shall be made from ac-
tual surveys and measurements, and shall be retained in the office
of the State Engineer; provided, that appropriation of water by
the United States shall be made as provided in section 2."

^* Section 5. Decrees Adjudicating Water Rights, Upon the ad-
judication of the rights to the use of the water of a stream sys-
tem, a certified copy of the decree shall be prepared by the clerk

OREGON. 779

of the court, without charge, and filed in the office of the State
Engineer. Such decree shall in every case declare, as *to the water
right adjudged to each party, whether riparian or by appropria-
tion, the extent, the priority, amount, purpose, place of use, and,
as to water used for irrigation, the specific tracts of land to which
it shall be appurtenant, together with such other conditions as
may be necessary to define the right and its priority.

'^Section 6. State Engineer, Appointment, Duties^ Qudlifica'
tions, and Salary, A State Engineer, technically qualified dnd
experienced as an hydraulic engineer, shall be appointed by the
Governor upon the recommendation of the director of the United
States geological survey and confirmed by the Senate. He shall
hold office for the term of four years from and after his appoint-
ment, unless sooner removed by the Governor for cause, and until
his successor shall have been elected and shall have qualified. He
shall have general supervision of all the measurements and rec-
ords of appropriation of waters of the State, and of all surveys
and engineering work in which the State may be interested, and
for which funds are provided, and shall perform all work in con-
nection therewith."-

^^ Section 9, Fees of State Engineer. The State Engineer shall
receive the following fees, to be collected in advance, and to be
paid by him into the general fund of the State Treasury on the
last day of March, June, September and December of each year:

*'(a) For filing and recording notice of an appropriation of
water, map and field-notes of the sajne, $5.00.

*' (6) For blue-print copy of any map, drawing, ten cents per
square foot or fraction thereof. For other copies of drawings
or any data furnished upon application, actual cost of work.

** (c) For certifying to such copies, $1.00 for each certificate.

^* (d) For such work as may be required of his office, the fees
provided by law.'*

The State Engineer has issued a pamphlet urging new legisla-
tion.

Irrigation Districts. — Irrigation districts based on the Wright
Act of California are provided in Bellinger and Cotton's Anno-
tated Codes, section 4700 et seq.

-The California Constitution, article XVI. Si?f-
tion 1. declaring the nse of water for sale, rental and distribiit:''!:
a public n.se is enacted witii some variation in BeUinger and Cot-
ton's Annotated Codes, title XI. section 4993. In tlie Statute «>:
1907, page 287, chapter 145. Multnomah Falls are reserved £n:*m
appropriation, the first legislation the writer recalls withdravins
specific water from appropriation. Concerning co-operation with
Tnited States BeclamatioD Service, see Statutes of 1905. page 4fJl.
The legislature in 1868 passed an act (Laws 1868. p. 22, sec. 9
authorizing the creation of drainage districts, which contains tk»'
following provision: ''This chapter shall not be construed so t>
to interfere with the rights of companies or individuals for min-
ing, manufacturing, or watering towns or cities." (B. ft C. Comp..
see. 4368.) In 1885 an act was passed granting to individaals and
to corporations rights of way over swamp and other lands belong-
ing to the State, to construct ditches for manufacturing purposes.
(Ibid., sec. 3338.) In 1899 another law was enacted which provided
that all existing appropriations of water for beneficial pnrxM>ses
should be respected and upheld, ''nor shall any existing null be
deprived of its water power, however lawfully acquired, without
the consent of its owner." {Ibid., sec. 5032.)

SOUTH DAKOTA. 781

SOUTH DAKOTA.

References are to the Statute of 1905, page 201, chapter 132,
unless otherwise stated, this statute being replaced by a new code
in 1907, page 373, chapter 180, but substantially the same. Pre-
vious to this statute, there had been little legislation upon the
subject in South Dakota. The office of State Engineer existed.
(Annotated Codes 1899, sec. 2802 et seq.) And there had been
considerable legislation concerning waters obtained from artesian
wells. (Ibid,, sees. 27, 54 et seq.) Previous to the Statute of
1905, the law of South Dakota in this connecti6n was contained
in Grantham's Annotated Statutes of 1899, section 2687 et seq.
There is nothing in the State Constitution upon the subject.

Declaration of State Ownership. — All waters within the State
are declared in section 1 to belong to the public. Also in Statute
of 1907, page 373, section 1.

Concerning Riparian Bights. — The South Dakota statutes of
1905 and 1907 contain the usual provisions to the effect that all
waters within the State are subject to appropriation (Stats. 1905,
sec. 1), and that beneficial use shall be the basis, the measure and
the limit of all rights to the use of water (Stats. 1905, sec. 2), and
that appropriation gives the better right. (Stats. 1905, sec. 2.)
The courts have in the past upheld the common law of riparian
rights, following the California system. (See text, sec. '22.)

The Colorado statute declaring that all landowners on th^ banks
of a stream have a right to use the water for irrigation was early
copied in South Dakota as well as North Dakota. In this State it
was held declaratory of the common law of riparian rights. (Lone
Tree Co. v. Cyclone Co. (S. Dak.), 91 N. W. 354.) Cf, the pro-
vision in the Statutes of 1907, page 382, section 31 : * ' Any person,
association or company who may have or hold any possession, right
or title to any agricultural lands within the limits of this State
shall be entitled to the usual enjoyment of the waters of the
streams or creeks of said State."

782 STATUTES.

Administration. — ^The State Engineer is appointed (sec. 5)
with general duties and powers of supervision over the waters
of the State, and to make surveys and collect all data available
(sees. 5, 12 and 32). He may examine all works. (Sec. 27.) The
oflBce of assistant State engineer is likewise created. (Sec. 6.)
Three water divisions are created by this statute (sec. 37), with
one water commissioner for each appointed by the governor. (Sec.
38.) The State Engineer and the water commissioners shall to-
gether form the Board of Water Commissioners and have general
supervision and control over waters of the State, adopting rules
and regulations, etc. (Sec. 40.) The water divisions may be sub-
divided into water districts by the State Engineer, as it becomes
advisable. (Sec. 42.)

Police regulations exist in the usual way. Disobeying the orders
of the State Engineer (sec. 28), or failure to maintain headgates
and other devices (sec. 49), and similar matters, are made misde-
meanors; and the penalties therefor are specified in section 54.

Determination of Existing Priorities. — The State Engineer is
required to make a complete survey of the waters of the State
(sec. 14), and to furnish the data collected to the attorney general,
whose duty it then is to bring suit in the name of the State to
determine the rights upon the stream, unless suit has already been
begun by private parties. (Sec. 15.) First pleadings in private
suits must be filed with the State Engineer, who may order the
attorney general to intervene. (Stats. 1907, p. 373, sec. 15.)
The usual provisions for the conduct of the suit are provided, and
the court may appoint a referee. (Sec. 33.) The decree must state
certain specified details concerning the rights of all users of water
on the stream, and one copy thereof must be filed in the oflSce of
the State Engineer, and the other copy with the water commis-
sioner of the water division in which the stream lies. (Sec. 18.)

Method of Appropriating. — Before beginning work. applicatioD
must be made to the State Engineer for a permit. (Sec. 19.) Be-
ginning work without making such application is a misdemeanor.
(Sec. 51.) The State Engineer will furnish blanks on which ap-
plications are to be made, and may require such general informa-
tion as he deems necessary. (Sec. 19.) Notice of application is
published in a newspaper (sec. 21), and an examination is made

SOUTH DAKOTA. 783

by the State Engineer; if he approves he indorses his approval
upon the application, which constitutes a permit to proceed. (Sec.
22.) If he rejects the application, an appeal lies therefrom. (Sec.
23.) The work must be prosecuted with diligence. (Sec. 24.) It
must be completed within five years (sec. 20), but the State Engi<
neer may specify a shorter time (sec. 22), or may extend the time
three years. (Sec. 22 et seq.) One-fifth of the work must be com-
pleted in one-half the time specified by the State Engineer. (Sec.
24.) On completion of the work an examination is made by the
State Engineer, and if all is satisfactory a certificate of completion
issues. (Sec. 26.) Actual application and use of the water must
follow within four years after the completion of the work (sec.
22), unless the State Engineer specifies a shorter time, or a longer
time not exceeding two years additional. (Sec. 22 e^ seq.) Upon
notice and examination of the actual use of the water at the edd
of the time specified, a license issues, which is the final certificate.*
(Sec. 29.)

Relation.-r-The priority of right dates from the time of filing
original application. (Sees. 2, 20.)

Measurement of Water. — The second-foot is the unit of meas-
urement by time and the acre-foot by volume, and the miner's
inch is declared equivalent to one-fiftieth of a second- foot. (Sec.
44.) If the appropriation is for irrigation, the maximum allowed
shall be one second-foot for each seventy acres irrigated. (Sec. 46;
Stats. 1907, p. 373, sec. 47.)

Fees of State Engine^.— (Sec. 9.) The State Engineer shall
receive the following fees, to be collected in advance and to be
paid by him into the general fund of the State treasury on the
first Monday of January, April, July and October, respectively:
(a) For filing and examining an application for permit to ap-
propriate water, and map of the same, five dollars; (b) for re-
cording any permit, certificate of construction or license issued or
any other water right instrument, one dollar for the first hundred
words and fifteen cents for each additional hundred words or frac-
tion thereof; (c) for filing any other paper, one dollar; (d) for
issuing certificates of construction, or license to appropriate water,
one dollar each; (e) for making copy of any document recorded

784 STATUTES.

or filed in his office, fifteen cents for each hundred words or frac-
tion thereof; (f) for blne-print copy of any map or drawing, ten
cents per square foot or fraction thereof. For other oopies or
drawings, actual cost of the work; (g) For certifying to such
copieft, one dollar for each certificate; (h) For examining and ap-
proving plans and specifications for any dam, not exceeding ten
feet in extreme height from the foundation, ten dollars. For a
dam higher than ten feet and not exceeding thirty feet, twenty
dollars. For a dam higher than thirty feet and not exceeding
fifty feet, thirty dollars. For a dam higher than fifty feet, fifty
dollars; (i) For inspecting dam sites and construction work when
required by law, or when necessary in the judgment of the State
Engineer, ten dollars per day and actual and necessary trayeling
expenses. The fees for any inspection deemed necessary by the
State Engineer and not paid on demand shall be a lien on any
land or other property of the owner of the works, and may be re-
covered by the State Engineer in any court of competent juris-
diction; (j) For such other work as may be required by his office,
the fees provided by law.

Miscellaneona. Section 55 provides as f<dlows: "All liens on
the land provided for in this act, shall be superior in right to all
mortgages or other encumbrances placed upon .the land and the
water appurtenant thereto, or used in connection therewith, after
the passage of this act.*'

Provisions concerning canal companies or those who furnish
water to others, are contained in sections 19 and 35. The water
right is appurtenant to the land where it is used, and can be
transferred only under the restrictions of application to the State
Engineer and publication of notice in a newspaper. (Sees. 31,
47.) Non-user for two years was ground for forfeiture of right
in the Statutes of 1905 (sec. 45), but the period is three years in
the Statutes of 1907, page 373, section 46. Concerning city water-
works, see Stat. 1907, p. 486.

TEXAS. 785

TEXAS.

Waters "are hereby declared to be the property of the public,
and may be acquired by appropriation for the uses and purposes
hereinafter provided." (Sayles' Civil Stats. 1900, art. 3115 et
seq.) To some extent the courts of Texas follow the California
system, recognizing the common law of riparian rights. (See
text, sec. 22.) There is nothing upon the subject in the State
Constitution.

The appropriator is required to file a ma^ and statement with-
in ninety days after the commencement of the work of construc-
tion, containing about the same information as is required in
Colorado. Upon compliance with the statute, the date of priority
relates back to the time when the work of excavation or construc-
tion was commenced. (Sayles' Civil Stats., arts. 3120, 3121.) A
failure to file such statement does not, however, work a forfeiture
of rights acquired theretofore, nor. prevent the claimants of such
rights from establishing them in the courts. {Ibid., art. 3121.)

Water Rights — 50

786 STATUTES.

UTAH.

References are to the Constitution and Laws of 1905, chapter
108, as amended 1907, pages 56 and 248. This was substituted in
1905 for the Statute of 1903, chapter 100 ; but' in most respects
the two are identical. The law previously had (in Rev. Stats.
1898, sees. 1261-1275) been modeled after the Civil Code of Califor-
nia. References to sections are to the statute of 1905 unless other-
wise stated.

•

Declaration of State Ownership.— '' The water of all streaios
and other sources in this State, whether flowing above or under
ground, in known or defined channels, is hereby declared to be
the property of the public, subject to all existing rights to the
use thereof." (Sec. 47.)

Concerning Riparian Rights.— '' Rights to the use of any of the
unappropriated water in the State may be acquired by appropria-
tion, in the manner herein provided, and not otherwise." (Sec.
34.) The courts follow the Colorado system rejecting riparian
rights in toto, (See text.) ** Beneficial use shall be the basis,
the measure and the limit of all rights to the use of water in this
State." (See. 49.) Existing water rights are confirmed by the
Constitution, article 17, section 1.

Preferences and Pro-rating. — The prior appropriator shall al-
ways be supplied in full before a subsequent appropriator gets any
water, except in tho annual low-water stage, when all users are on
an equal footing, and pro-rate. In time of scarcity, domestic uses
have preference over all other purposes, and agriculture over all
except domestic use; those using for the same purpose maintain-
ing priorities between themselves. (Sec. 56.)

Administration. — The use of water for beneficial purposes is
a public use. (Sec. 50.) The State Engineer, appointed for four
years by the governor, has general supervision of the waters of the
State, their measurement, apportionment, appropriation, and gen-

UTAH. 787

eral supervision over all division superintendents and district su-
pervisors, making rules and regulations, and publishing biennial
reports including recommendations upon changes in the law, etc.
(Sees. 1, 3.) He, as necessity arises, shall divide the whole State
into water divisions designating them by name, with a superin-
tendent for each, and subdivide the divisions into districts desig-
nating them by numbers, with a supervisor for each. The super-
intendents are appointed by the State Engineer, and have gen-
eral control over the division, while the supervisors are appointed
by the counties in which they serve, and apportion the water
among its ditches according to determined priorities, and keep
general control over the district. Appeal lies from these officers
to the State Engineer. (Sees. 26-30.) . The officials must give a
fidelity bond. (Stats. 1907, p. 56.) The owners must maintain
headgates and measuring devices within thirty days after request
from the State Engineer, or are guilty of a misdemeanor. (Sec.
55.) Destroying or interfering with such applications or ob-
structing the officials is a misdemeanor. (Stats. 1907, sec. 64.
p. 57.)

Determination of Existing Priorities. — The State Engineer
roust make a complete survey of each river system or water source
of the State beginning with those most used for irrigation, and col-
lect all data that will aid in adjusting existing priorities. (Sec.
6.) He must publish a notice in a newspaper for fifteen days be-
fore conmiencing in any system.

On completion of his survey, he files a written statement with
the clerk of the district court of the county in which the stream
is situated, and if situated in more than one county, then in the
most convenient one, whereupon said district court shall have ex-
clusive jurisdiction to determine all water rights on said river or
water source. (Sec. 11.) Within thirty days after the filing of
this statement the clerk of the court publishes notice once a week
for three successive months, requiring all claimants to file claims
within six months. The clerk also mails a copy of this notice to
each claimant, inclosing a form for statement of claim. This is
filled out and verified by the oath of claimant. The State En-
gineer must tabulate these claims, and file this tabulation with the
clerk of the district court and with the county recorder of each
county in which the water is situated. (Sec. 13.) Failure to file

7S<* STATUTES.

claim within the six months is a complete bar, unless the claimAi:
did not receive actual notice, in which case the court may extir/.
the time to one year, the court publishing; notice of the request : •?
extension. (Sec. 14.)

At the end of the six months the court may appoint a referee, '^r
may determine priorities without a referee. (Sees. 15, 17.) Tn-
statements filed by claimants stand in the place of pleadings, and
the State Engineer furnishes the referee or court with the data he
has collected. (Sec. 17.) Testimony may be taken at such places as
advisable, giving notice to claimants as each claim comes up. ^S^^
18.) Any interested party may file a contest. (Sec. 19.)

The decree is rendered by the court upon the findings of tii^
referee, if satisfactory to the court, subject to appeal to the sm-
preme court, if taken within six months. (Sees. 21, 22, 23.*
This decree sets forth ''the name and postoffice address of the per-
son, corporation or association entitled to the use of the water; the
ifuantity of water in acre-feet, or the flow of water in aeocMid-feet
1o be used; the purpose for which the water is to be used each
year; the name of the str^mi or other source from which the water
is diverted; the priority number of the right; the date of the
right, and such other matters as will fuUy and completely define
the right of said person, corporation or association to the use of
the water." (Sec. 22.)

A certificate is then issued in duplicate to each owner oontainin?
the facts stated in the decree. One copy is to be recorded within
thirty days with the county recorder of the county where the
division is made, and the other is to be filed with State Engineer.
(Sec. 24.)

Method of Appropriating. — ^Before commencing or enlarging
any work, written application must be made to the State Engineer
on a form furnished by him, setting forth the name and postoffice
address of applicant, the purpose of use, quantity to be used, time
of use, name of stream, point of diversion, nature and description
of diverting works in detail, and such other facts as will clearly
define the full purpose of the proposed appropriation. (See. 35.)
If for irrigating, must also show and describe what land is to be
irrigated. If for power, the nature and description of the pro-
posed equipment, and the place where the water is to be returned

UTAH. 789

to the natural stream. If for mining, the name and kind of mine
and the place where the water is to be returned. (Ihid,)

The date of receipt of the application is indorsed thereon by
the State Engineer, who may require the application to be cor-
rected. (Sec. 36.) The applicant having sixty days for refiling
and approval or rejection. (Stats. 1907, p. 248.) The State En-
gineer publishes notice of the application in a newspaper within
the boundaries of the river system or water source where the
appropriation is to be made, for thirty (30) days. Protests may,
within thirty days after final publication, be filed with him.
(Sees. 37, 38.) He may require additional information, such as
particulars concerning the corporation, if the applicant is a cor-
poration. (Sec. 41.)

Approval or disapproval is indorsed by the State Engineer upon
the application. (Sec. 40.) If approved, the applicant may pro-
ceed with the work (sec. 40), beginmng within six months after
approval and, unless otherwise prescribed by the State Engineer,
completing the work within five years. (Sec. 42; also Stats. 1907,
p. 248.) Parties aggrieved by the approval of any application may
bring suit (against the applicant^). (Sec. 43.) Upon comple-
tion, a sworn description and proof of work must be filed with
the State Engineer on a form furnished by him, attested by two
witnesses, and accompanied by complete detailed maps, also certi-
fied, a failure to make such proof being a misdemeanor. (Sec. 44.)

A numbered certificate of appropriation in duplicate is issued
to the appropriator by the State Engineer, when he is satisfied
that the appropriation has been effected. This certificate sets forth
the name and address of the appropriator, the amount of water,
purpose for which used, time of use, name of stream, place of
diversion, priority number, date of appropriation, and such other
matters as will fully define the right. One copy to be filed with
the State Engineer. The other copy is recorded by the appro-
priator with the recorder of the county where the water is diverted ;
and is his evidence of his right. (Sec. 45.)

A change in place of diversion may be made only on making a
report to the State Engineer. (Sec. 53.)

Rdation,-^'^ The priority number of such appropriation shall be
determined by the date of receiving the written application in the
ifetate Engineer's office.'' (Sec. 46.) -

790 STATUTES.

Reservoirs. — A special provision covers the building of dams (in
sections 3 to 10). Duplicate plans, etc., for any dam over five
feet in height across the natural channel of a running stream,
or any other dam over ten feet, shall be submitted to the State
Engineer for his approval ; one copy to be returned with his ap-
proval or disapproval. Failure of persons to comply with this
requirement is a misdemeanor. The work must be done under the
supervision of the State Engineer.

Measurement of Water.— The standard unit of flow is one cubic
foot per second; of volume, one acre-foot, equivalent to 43,560
cubic feet. (Sec. 48.)

Schedule of State Engineer's Fees (Stats. 1906 and Stats.
1907, p. 248.). — Approval of plans for dam, $1 for each foot in
height.

Inspection of dam site, $10 per day and expenses.
Inspection of any works by request, ^ the same.
Filing application to appropriate, $2.50 up to ten second-feet; $1

per second-foot additional.
Approval of application, $2.50.
On proof of appropriation, $5.00.
Recording completed applications, $2.50.
Certificates of appropriation, $1.00.
Filing notices of protest, $2.50.
Filing any other paper, $1.00.
Certified copy of any paper, per folio, 20c.
Blue-print of any map, etc., 10c per square foot.
Certificate to copy of paper or map, etc., 50c.

Irrigation Districts. — Concerning irrigation districts based on
the Wright Act of California, see Statute of 1888, page 127; Re-
vised Statutes of 1898, section 1287 et seq. (since repealed), and
Statute of 1905, c. 108, sec. 71.

MiBceUaneous. — Concerning eminent domain, see Constitution,
article I, section 22. For well-boring experiments, the Statute
of 1907, page 21, requires the landowner to deed an acre of land
and rights in water to the State officials (after condemnation!).
Concerning water rights of cities, see Constitution, article XI, sec-
tion 6. In article XIII, section 3, of the Constitution, irrigation

works are exempt from taxation.

WASHINGTON. 791

WASHINOTON.

References are to Pierce's Code, 1905 edition, unless otherwise
stated. (See, also, Ballinger's Code of 1897, sec. 4092 et seq., and
Session Laws, 1907.) The Constitution, article XXI, section 1,
contains a provision based on California Constitution, article XIV,
section 1, that the use of water is a public use.

Oeneral Provisions. — Appropriation is allowed. **U8e of water
at all times'' declared a public use. (Sec. 5122.) Appropriation
of waters of lake, pond, flowing spring, river, stream, or ravine.
(Sec. 5131.) Ditches for using waste, seepage, or spring water
shall be covered by same laws as streams, but person on whose
land the seepage rise shall have a prior right thereto. (Sec. 5829.)
Semhle, unconstitutional, Nelson v. Sponer (Wash.), 89 Pac. 155.
Natural irrigation from natural overflow or seepage a right which
may be converted into a diversion if necessary.. (Sec. 5830.)
Beneficial use limits irrigation. (Sec. 5836.) Purpose of use may
be changed. (Sec. 5139.) **The right to the use of water may be
transferred like other property by deed." (Sec. 5136.)

Eminent Domain. — Condemnation of riparian rights. Proce-
dure. (Sec. 5858.) Condemnation for rights of way. (Sec. 5848.)
Must file map. (Sec. 5856.) Act applies only to irrigation. (Sec.
5857.) Condemnation -by water company. (Sec. 7081.) Con-
demnation by water companies not apply to water actually used
for irrigation. (Sees. 5869, 5871.) Section 4156, Ballinger's An-
notated Codes and Statutes, which is as follows: **The right here-
in given to condemn the use of water shall not extend any further
than to the riparian rights of persons to the natural flow of water
through 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.". Construed in State v. Superior Court (Wash.),
91 Pac. 968.

Siparian Bights. — **A11 persons who claim, own, or hold posses-
sory right or title to any land, or parcel of land, or mining claim

792 STATUTES.

within the boundaries of the State of Washington, when such lands,
mining claims, or any part of the same are on the banks of any
natural stream of water, shall be entitled to the use of any water
of said stream not otherwise appropriated for the purposes of
mining and irrigation to the full extent of the soil for agricul-
tural purposes." (Sec. 5123.) Non-riparian owners shall have a
right of way OTcr riparian lands by taking condemnation pro-
ceedings provided for in section 5127, paying compensation in
court. (Sees. 5124-5128. See, also, sec. 5815 et seq.) Non-ri-
parian owners may take surplus water. (Sec. 5821.)

The legislation of Washington has not been hostile to the oom-
mpn law. In Benton v. Johncox (Wash.), 49 Pae. 498, the court
says (the statutes mentioned being evidently those just above
given) : **Nor did the legislature disregard the rights of riparian
owners in the general act of 1890 relating to appropriation of
water for irrigation. (1 Hill's Code, sec. 1718 et seq.) On the
contrary, sections 1761 and 1774 of that act especially recognize
the existence of riparian rights, and we do not see anything in
that statute or the subsequent act of 1891 evincing an intention
on the part of the legislature to disregard such rights." The
court upholds riparian rights. (See text, sec. 22.)

Supervision of Appropriators. — Water districts. Each county
a district. Water commissioner for each. (Sec. 5840.) Commis-
sioners apportion the water, control headgates. (Sec. 5842.)
Water commissioners keep register of appropriationa (Sec. 5847.)
A very loose section (sec. 5826) providing for water commissioners
to be appointed by court to supervise the acts of irrigators, in use
of water. See Statute of 1907, chapter 222, page 285, same con-
cerning use of stream to carry stored water.

Use of natural watercourse as conduit for other waters. Appli-
cation must be made to superior court, who appoints a commis-
sioner to measure and supervise inlet and outlet of the water to
and from the stream. Appropriators along the stream must main-
tain headgates, etc. Interference therewith, misdemeanor. (Stats.
1907, p. 285.)

Headgates, duty to maintain. (Sees. 5837, 5901.) Penalty for
tampering with ditches. (Sec. 5834.) Injury to water appliances
a misdemeanor- (Sec. 5872.) Tampering with irrigation appli-
ances a misdemeanor, and (sec. 1908) presumption is that user

WASHINGTON. 793

of the water tampered with is guilty. (Sec. 1907.) Duties of
ditch owners to prevent overflow. (Sec. 5834.) Bridging public
roads (sec. 5835), concerning pipes, etc., on public highways. (See
Stats. 1907, p. 600.)

Adjustment of Existing Priorities, etc.— Adjudication of
rights. (Sec. 5873 et seq.) Owners required to file claim with
clerk of the superior court before June 1, 1890. Decree of court
adjudging right, and issue certificate by clerk, which (sec. 5875)
holder shall record like a deed. Priorities to be mentioned on
issuing certificates. (Sec. 5879.) Where a deficiency of supply,
jmdge may appoint commissioners to make equitable apportionment.
The apportionment may be by enforcing a pro-rata reduction from
the full amount appropriated. (Sees. 5820-5824, 5831.)

Method of Appropriating. — ''Any person, persons, corporation,
or association desiring to appropriate water must post a notice, in
writing in a conspicuous place at the point of intended storage
or diversion, stating therein:

"First. That such appropriator claims the water there lying,
being, or flowing, to the extent of one cubic foot of water per
second of time, or some multiple or some fractional portion thereof.

* * Second. The purpose for which said water is appropriated, and
the place or places, as near as may be, of intended use.

"Third. The means by which it is intended to store or divert the
same.

"Fourth. A copy of the notice must; within ten (10) days after
it is posted, be filed for record in the office of the county auditor
of the county in which it is posted." (Sec. 5132.) This section
applies only to irrigation. (Sec. 5138.)

Purpose being storage, work must be commenced within three
months after posting notice of diversion; if diversion, six months.
Must be diligently prosecuted. (Sec. 5133.) This section applies
only to irrigation. (Sec. 5138.) Relation back to posting notice.
(Sec. 5134.) This section applies only to irrigation. (Sec. 5138.)
Appropriations for mining and manufacture. (Sees. 5140, 5141.)
No special procedure provided, as the above applies only to irri-
gation. (Sec. 5138.)

Irrigation Districts. — Irrigation districts based on the Wright
Act of California are provided in Pierce's Codes of 1905, sec.

794 STATUTES.

5736 et seq.; Ballinger's Code 1897, sees. 4166-4249. (Concerning
their dissolution, sees. 5881, 5886.) The irrigation district law
was upheld in Board of Directors v. Peterson, 4 Wash. 147, 29
Pac. 795 ; Kinkade v. Witherop, 29 Wash. 10, 69 Pac. 399,

Irrigation on State Lands.— See Pierce's Codes 1905, section
5904. In the Statutes of 1907, page 353, the right of way for
irrigators over State lands is granted, upon* filing map and field-
notes with the Board of State Land Commissioners, and paying
not less than $10 per acre for the land irrigated. ** Nothing in
this act shall be deemed to in any way conflict with any existing
law of this State relating to the method of acquiring rig^hts df
way for irrigaition districts." In the Statute of 1907, page 233.
the right is granted to overflow State lands for reservoirs.

Miscellaneous. — Water company ''shall be deemed to be a pub-
lic carrier.'* (Sec. 5870.) Unit of measurement shall be a cubic
foot of water per second of time. (Sec. 5942.) Appropriations
by United States. (Sec. 5903; also, Stats. 1905, p. 180.) Water
users association. (Sec. 5903F.) Pollution of city water supply.
(Stats. 1907, p. 562.)

WYOMING. 795

WYOMING.

References are to the Constitution, articles I, VIII and XIII, and
the Statute of 1907, page 138, codifying the Revised Statutes of
1899 and succeeding session laws. The Wyoming statutes have
been the model for many of *the provisions of the irrigation codes
now existing in most of th^ arid States; especially that of the
State Engineer, the Board of Control, and the method of appro-
priating by issuance of permits; but until 1907 did not exist in
a single code. Many of the important features were placed in
the Constitution itself.

Declaration of State Ownership. — ''The waters of all natural
streams, springs, lakes or other collections of still water, within the
boundaries of the State, are hereby declared to be the property of
the State. *' (Const., art. VIII, sec. 1.)

Concerning Riparian Rights. — ^Priority of appropriation for
beneficial uses shall give the better right. No appropriation shall
be denied except when such denial is demanded by the public
interests. (Const., art. VIII, sec. 3.) The courts follow the Colo-
rado system, rejecting riparian rights in toto. (See text.)

The Colorado statute that all landowners on banks of a stream
have a right to the use of the water for irrigation appears in Com-
piled Laws of 1876, chapter 65, section 1, Revised Statutes 1317.
In the Compiled Laws of 1876, it provided as follows: ''All per-
sons who claim, own, or hold a possessory right, or title, to any
land or parcel of land, within the boundary of Wyoming terri-
tory, 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 claim available, to the full extent of
the soil, for agricultural purposes.'* If inconsistent with the law
of appropriation (held not so in Willey v. Decker, 11 Wyo. 496),
then probably is repealed by codification of 1907.

Administration. — Water is declared essential to industrial pros-
perity and the State shall equally guard its use for all interests
involved. (Const., art. I, sec. 31.)

796 STATUTES.

Constitution, article I, section 31, — "Water being essential to in-
dustrial prosperity, of limited amount and easy of diversion from
its natural channels, its control must be in the State, which, in
providing for its use, shall equally guard all the various interests
involved."

^^Sec. 2. There shall be constituted a Board of Control to be com-
posed of the State Engineer and Superintendents of the Water
Divisions, which shall, under such regulations as may be prescribed
by law, have the supervision of the waters of the State, and of
their appropriation, distribution and diversion, and of the various
ofScers connected therewith, its decisions to be subject to review
by the courts of the State. "

"Sec. 4, The Legislature shall by law divide the State into four
water divisions and provide for the appointment of Superintend-
ents 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 years, or until his suc-
cessor shall have been appointed and shall have qualified ; he shall
be President of the Board of Control and shall have general super-
vision of the waters of the State, and of the officers connected
with its distribution. No person shall be appointed to this posi-
tion who has not such theoretical knowledge and such practical
experience and skill as shall fit him for the position."

General control lies in a Board of Control ordained by the con-
stitution, consisting of the State Engineer and the superintendents
of the water divisions, and shall have control over all waters.
(Const., art. VIII, sec. 2; Rev. Stats. 857.) And must meet twice
a year. (Stats. 1907, p. 138, sec. 5.) The State Engineer shall
be president of the board. (Const., art. VIII, sec. 5.) He has
general powers over the whole State (/6id.) and may inspect any
works. (Rev. Stats. 932 et seq.) The constitution establishes four
water divisions, with one superintendent for each (Const., art.
VIII, sec. 4; Rev. Stats. 848), who controls waters within his divi-
sion and performs whatever duties the State Engineer may assign
(Rev. Stats. 849, 850), and may make regulations for his division.
(Rev. Stats. 851.) E&ch division may, as necessity arises, be di-
vided into water districts by the State Board of Control (Rev.
Stats. 888), with one water commissioner for each district (Rev.

WYOMING. 797

Stats. 889), who has direct control over the administration of
water within his district (Rev. Stats. 890 et seq. ; Stats. 1907, p.
138, sec. 7 et seq.), subject to appeal to the division superintend-
ent and from him to the State Engineer and then to court. (Stats.
1901, p. 107.) He divides the water according to priority, may
shut down headgates, regulate partnership ditches according to
decrees, etc., on demand of users or of division superintendent.
(Stats. 1907, p. 138, sec. 7 etseq.) He may make arrests. (Rev.
Stats. 772.) Owners must maintain headgates and measuring de-
vices or the division superintendent may shut ofE the water. (Stats.
1901, pT. 99.) Disobeying oflBcials is a misdemeanor. (Rev. Stats.
971; Stats. 1901, p. 95; Stats. 1907, p. 138, sec. 15.) The county
prosecuting attorney must defend the oflScials when sued for their
acts. (Stats. 1907, p. 138, sec. 7 et seq.)

Determination of Existing Priorities. — ^Existing priorities are
determined by the Board of Control, whose decree, subject to re-
hearing or appeal within one year, is final. (Stats. 1901, p. 70.)
A notice of investigation is published, and the division superin-
tendent then begins taking evidence. (Rev. Stats. 861.) The
claimant fills out blanks stating certain prescribed details, and
swears thereto. (Rev. Stats. 863, 864.) If aggrieved by the evi-
dence gathered by the division superintendent, he may have a
special hearing. (Rev. Stats. 867 et seq.) From the data thus
gathered the State Engineer prepares maps (Rev. Stats. 871), and
from these data and the maps the Board of Control adjudges the
right of each claimant. (Rev. Stats. 872.) The Board of Control
then issues a certificate of priority which is recorded with the
coimty clerk. (Rev. Stats. 873.) And the coimty clerk gives the
appropriator a receipt which is filed with the State Engineer.
(Stats. 1907, p. 138, sec. 11.) The Board of Control may order
a rehearing, or an appeal may be taken to court (Rev. Stats. 874,
883), or the defeated party may proceed by injunction against
the one successful before the Board of Control. (Willey v.- Decker,
11 Wyo. 496.)

A special statutory proceeding exists to settle disputes between
tenants in common. {Ante, see. 71.) See, also, Stats. 1907, p. 138,
sec. 7 et seq. ; and sees. 20, 22, issuing certificates to each.

Method of Appropriating. — ^Before commencing (or enlarging),
application must be made to the State Engineer, stating certain

798 STATUTES.

details on a form prescribed by him (Rev. Stats. 917), accompanied
by duplicate maps. (Rev. Stats. 924 et seq., 918; Stats. 1907. p.
138, sees. 13, 14.) Beginning work without a permit is a crime.
(Ibid.) The application need not enumerate lands, but if the
water is from a reservoir, a special application called a "second-
ary" application must be filed, specifying lands, etc. (Stats. 1907,
p. 138, sec. 16.) He keeps a record of date of receipt of appli-
cation. (Ibid,) If approved, he scf indorses it and returns it to
applicant, who miay then go ahead (Rev. Stats. 920), and who must
begin within a time fixed by the State Engineer (not over one
year), and must complete it in a time likewise fixed (not over five
years). (Rev. Stats. 922.) An appeal lies from the, State Engi-
neer to the Board of Control, and then to court. (Rev. Stats. 923.)
Upon ** perfection of the appropriation" a certificate is sent to
the appropriator and recorded in the office of the county clerk.
(Rev. Stats. 928.)

Relation, — Priority dates from the filing of the application with
the State Engineer. (Rev. Stats. 929.)

Reservoirs. — Concerning dams over five feet in height (Re^-
Stats. 931), permit required from State Engineer. (Stats. 1903,
p. 74!)

. Measurement of Water. — The standard of measurement is one
cubic foot per second. (Rev. Stats. 968.) No allotment for irri-
gation shall exceed 1 cubic foot per second for each seventy acres
of land. (Rev. Stats. 872.) ** Rights to the use of water shall
be limited and restricted to so much thereof as may be necessarily
used for irrigation or other beneficial purposes as aforesaid; irre-
spective of the carrying capacity of the ditch," etc. (Stats. 1907.
p. 138, sec. 12; Rev. Stats. 895.)

Irrigation Districts. — Irrigation districts based on the Wright
Act of California are provided in the Statutes of 1907, page 103.

Miscellaneous. — Five years' successive non-use causes loss of
right. (Stats. 1907, p. 138, sec. 12.) Water companies are de-
clared common carriers. {Ibid., sec. 12.) Concerning injunction
suits detailed provisions appear in the Statutes of 1907, page 138.
section 21. Conveyances must be recorded. {Ibid., sec. 22.) Vol-
untary settlements may be recorded and cannot be attacked after

WYOMING. 799

ten years. {Ibid.^ sec. 23 et seq.) A curious section provides for
proceedings in equity to settle disputes (sec. 27) with a proviso:
** Provided, that the provisions of sections 22 and 27 of this act
shall not be construed to relate to water rights or any- way to con-
flict with the laws governing the same." A license is required of
all hydraulic engineers to practice their profession. {Ibid,, sec. 28;)
Water rights of towns, see Const.,. art. XIII, sec. 5; Stats. 1907, p.
150. Ditches on highways, Stats. 1907, p. 62. Pollution of water
a crime, Stats. 1907, p. 44.

800 STATUTES.

ALASKA.

Alaska Act June 6, 1900, 31 Stats, at Large, 321, sec. 15, pro-
vides for the record of "waters and declaration of water rights,"
but leaving their form and effect to local mining district rules.

There are no specific statutes upon appropriation in Alaska.
(Miocene D. Co. v. Jacobsen (C. C. A.), 146 Fed. 680.) The laws
of Oregon govern to some extent. (Noland v. Coon, 1 Alaska, 36.)
The United States Revised Statutes, sections 2339, 2340, do not
(semble) apply in Alaska (Ketchikan etc. Co. v. Citizens' etc.
Co., 2 Alaska, 120, accord 26 Land Dec. 305) ; but it is held, also,
that they are in force as concerns appropriations for mining.
(Revenue etc. Co. v. Balderston, 2 Alaska, 363, accord 2H
Land Dec. 305.) The California doctrine enforcing the com-
mon law of riparian rights appears to be in force in Alaska
(Ketchikan etc. Co. v. Citizens' etc. Co., 2 Alaska, 120), but see
Thomdyke v. Alaska Perseverance Co., — Fed — , before Judge
Wickersham, June 3, 1907, now on appeal in the U. S. Circuit
Court of Appeals.

In Carter's Annotated Alaska Codes of 1900, sections 5 and 33,
appear statutes making pollution of water by refuse or poison a
crime.

The Federal public land legislation does not apply to. Alaska
unless made to do so by special mention, and consequently the Act
of Congress of March 3, 1891, regarding rights of way oyer pubUc
lands (see Federal Statutes) does not apply to Alaaka, and the
land office will not receive filings for canals and ditches under that
act. (35 Land Dec. '297.)

PHILIPPINE ISLANDS. 801

PHILIPPINE ISLANDS.

The Spanish Philippine Code contained in articles 407 to 425
the usual civil law provisions concerning waters. Article 414 pro-
vided: *'No one may enter private property in search of waters,
or make use of them without permission from their owners," which
must have had the result of restricting the use to riparian pro-
prietors. A translation of this code was issued by the United
States War Department.

32 United States Statutes at Large, 677, 704. Concerning Phil-
ippines.— ''Beneficial use shall be the basis, the measure, and the
limit of all rights to water in said islands." A common phrase
in the States rejecting riparian rights in toto (page 697). Sec-
tions 2339 and 2340, Revised Statutes of the United States, are sub-
stantially enacted for the Philippines (page 704) as follows:

An Act temporarily to provide for the administration of the
affairs of civil government in the Philippine Islands, and for other
purposes. . Approved July 1, 1902, 32 Stat. 691, 697, 704, c. 1369
(quoted here in part relating to waters).

Sec. 19. That the beneficial use shall be the basis, the measure,
and the limit of all rights to water in said islands; and the gov-
ernment of said islands is hereby authorized to make such rules and
regulations for the use of water, and to make such reservations of
public lands for the protection of the water supply, and for other
public purposes not in conflict with the provisions of this Act, as
it may deem best for the public good.

Sec. 50. That 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 the decisions of
courts, the possessors and owners of such vested rights shall be
maintained and protected in the salne, and the right of way for
the (Construction of ditches and canals for the purposes herein spec-
ified 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 commit-

Wftter Right* — 61

802

STATUTES.

ting such injury or damage shall be liable to the party injured for
such injury or damage.

Sec. 51. That all patents granted shall be subject to any vested
and accrued water rights, or rights to ditches and reservoirs used
in connection with such water rights as may have been acquired
under or recognized by the preceding section. .

HAWAIIAN ISLANDS. 803

HAWAIIAN ISLANDS.

The King was ultimate proprietor in Hawaii of all rights in
water, as he was of land, but by custom it^became a rule during
the Ijast century that tenants should be allowed to use both water
and land as by usage they had been doing, and should not be
dispossessed without cause. (Haw. Com. Co. v. Wailuku S. Co.,
15 Haw. 675.) Bights in water are thus, as against the Govern-
ment, founded and defined by immemorial usage, and between
individuals these customary rights are varied by grant and pre-
scription. (Cleghorn's Appeal, 3 Haw. 216.) The decisions of
the supreme court are usually based on prescription. In localities
where use is only recent and cannot be traced to immemorial
custom, it is doubtful what system of law will prevail. The
general common law has been adopted in the Islands by statute,
and one decision assumes the applicability of the common law of
riparian rights, though a later decision expressly left open
whether that systein is in force in the Islands or not. (Peck v.
Bailey, 8 Haw. 658; Wong Leong v. Irwin [1896], 10 Haw. 271.)
The latter contains an excellent statement of the common-law
principle.

In 1860 a Board of Commissioners was established for all con-
troversies over rights of way and water rights, the decision to
be such as appears to them just and equitable, and after several
amendments, this system is now established by sections 2199 to
2206, Revised Laws of 1905, as amended in Laws of 1907, p. 66,
c. 56, substituting a Circuit Judge, sitting in Chambers, for the
Commissioners in the older acts; and allowing appeal to the
supreme court from his decision. Under the previous statutes
the proceedings before the Commissioners were held to be judicial
(Cleghom's Appeal, 3 Haw. 216), and not exclusive of the usual
equity jurisdiction in civil suits (Wailuku S. Co. v. Comwell, 10
Haw. 476), and the Commissioners could only define rights and
not give damages for past violations (Davis v. Afong, 5 Haw.
216). They apportioned the water usually by periods of time,
arid exercised a large discretion.

804 STATUTEa

Rights resting on custom, grant or prescription are usually
appurtenant to land, but may be separated therefrom for use
on other land, or the purpose of use may be changed, if no one
is injured thereby (Koalaea Mill Co. v. Stewart, 4 Haw. 416;
Lonoaea v. Wailuku S. Co., 9 Haw. 651) ; and there are certain
*' surplus" rights which are not appurtenances to any land.
{Haw. Com. Co. v. Wailuku S. Co., 15 Haw. 675.)

Kevised Laws 1905, Section 366: **The people shall also have a
right to drinking water, and running water, and rights of way.
The springs of water, running water, and roads shall be free to
all, on all lands granted in fee simple, provided, that this shall
not be applicable to wells and watercourses which individuals
have made for their own use.'* [By "people'' is meant tenants
of plantations or landed proprietors.]

Revised Laws 1905^ c. 2^3, p. 1153: Special statute to prevent
waste of artesian well water on island of Oahu, and prohibiting
use of the same for running machinery where it prevents use
thereafter for other .purposes.

PART VII.

.■^^

FORMS.

The following forms, with the exception of that given for Cali-
fornia, have been adopted by the State Engineers of the States
having statutes prescribing forms, as set forth in the previous pages.
In Wyoming these forms have been in use for fifteen years. In
printing these forms in this book', the vacant spaces have been
shortjened to a line or less, though some of the forms leave sufScient
space in places to write in several lines of description. For the
forms following, the writer is greatly indebted to Mr. T. W. Jaycox,
State Engineer, Denver, Colorado; Mr. James Stephenson, Jr.,
State Engineer, Boise, Idaho; Mr. Adna Dobson, State Engineer,
Secretary, Lincoln, Nebraska; Mr. Henry Thurtell, State Engineer
(1905), and Mr. J. R. Van Nagell, Assistant State Engineer, Carson
City, Nevada ; Mr. Vernon L. Sullivan, Territorial Engineer, Santa
Fe, New Mexico; Mr. A. L. Fellows, State Engineer (1905), and
Mr. T. R. Atkinson, State Engineer (1908), Bismarck, North
Dakota; Mr. John H. Lewis, State Engineer, Salem, Oregon;
Mr. Samuel H. Lea, State Engineer Pierre, South Dakota; Mr.
Caleb Tanner, State, Engineer, Salt Lake City, Utah ; and Mr.
Clarence T. Johnston, State Engineer, Cheyenne, Wyoming.

(805)

806 FOBMS.

OAUFOSNIA.-

No special forms are prescribed in The following notice was upheld in

California. Any arrangement contain- Vineland Irr. Dist. v. Azusa Irr. Co.,

i.u x^i. i. • J v -A- 126 Cal. 482, where it was relied on

mg the statements required by section ^^ appropriators claiming an appro-

1415 of the Civil Code is a sufficient priation of both surface and under-
notice of appropriation. ground water.

NOTICE.

Azusa, August 27, 1883.
To Whom It May Concern :

We, the undersigned, hereby claim the water here flowing in the
channel of the San Gabriel River, to the extent of 5,000 inches
measured under a four-inch pressure, and the purpose for which
the same is claimed is for irrigation and domestic use on lands in
Azusa Township and the County of Los Angeles, State of Cali-
fornia, and owned by the stockholders of the Azusa Water Develop-
ment* and Irrigating Company.

The means by which it is intended to divert said water is hy
bedrock and surface dam, or both, tunnel, ditch, iron pipe, and
flume, or any or either of such means as may be found most prac-
ticable, and the size of such tunnel will be six feet in height and
six feet in width, and the size of such ditch to be eight feet in
width and five feet in depth. The size of such iron pipe to be forty
inches in diameter, and the size of such flume is six feet aix inches
in width, and six feet and six inches in depth, or larger, if neces-
sary, to carry the amount of water here claimed.

Such bedrock and surface dam, or either of them, to be con-
structed of rock, cement, logs, brush, and gravel, or either of them,
or any of such material, or any other material found as well or
better suited for the purpose of such construction.

AZUSA V^ATER DEVELOPMENT AND IBRIGATINa COMPANY.

By M. BALDBIDGE,

Ptes.

This notice was attacked on the at the point which afterward became
ground that it did not give the place the mouth of the development tunnel,
where the same was or was to be and specified the water "here flow-
posted ; but, as the notioe wu ported ing, ' ' the notice was held valid.

COLORADO.

807-

COLORADO.

The following circular was issued
by the State Engineer's office, April
15, 1907.

Eequirements for filing maps atid
statements of Ditches and BeservoirSf
in compliance with Chapter 1186 of the
Session Laws of 1903, and the reg-
ulations of the State Engineer's office '
thereunder. This Act provides that

''Every person, association or cor-
poration hereafter constructing or en-
larging any reservoir or reservoirs,
constructing, changing the location of,
or enlarging any (Stch, canal, or feed-
er for any ditch or reservoir, for the
purpose of furnishing a supply of
water for domestic, irrigation, power
or storage, or for any other beneficial
use, taking water from any natural
stream, shall, within sixty days after
the commencement of such construc-
tion, change of location or enlarge-
ment, make filings in the office of the
State Engineer for each specific claim
in such form as shall seem sufficient
and satisfactory to the State En-
gineer *'

The maps must be in duplicate, ac-
companied by the proper fees and
filed in the office of the State En-
gineer within sixty days of the com-
mencement of construction, which
time may be the date of actual con- •
struction or the beginning of the sur-
vey. The duplicate is examined and
certified to by the State Engineer, so
that it may be returned and filed in
the office of the county clerk within
ninety days of said date of commence-
ment of construction. Maps must be
on a good quality of tracing cloth,
24x36 inches, with a two-inch margin
on the left-hand side, making the
available space for the map 24x34
inches.' All maps to be made of this
size irrespective of the size of the
reservoir, or the ditch to be shown*.
The scale of the map must corres-
pondingly vary, but should be suffi-

cient to clearly show each course and
distance. It is desirable in the case
of reservoirs, that the scale should be
four hundred feet to an ' inch, or
larger when needed to properly show
the proposed works. In case the sheet
is not of sufficient size for this pur-
pose, then the map must consist of
two or more sheets. In such case^
each sheet should be marked ''Sheet
No. 1,'' *f Sheet No. 2,^' etc., and
each sheet properly titled. The ink
used in maldng these maps must be
water-proof for permanent record, and
either Higgins (water-proof) or Wind-
sor Newton's Liquid India Ink may
be used for this purpose. It is also
desirable to have both the signatures
and dates put in with water-proof ink,
if possible.

An statements are to be placed upon
the same sheet or sheets as the map.
It is necessary to use the forms of
statements and affidavits as given
herein. It will save time and delays.
A person can sign statements and
swear to affidavits as figent for others.
The authority for so doing must ac-
company the maps, but not be at-
tached thereto. The impression of the
notarial seal should be placed upon
and indented into the tracing cloth
and not upon a wafer attached to the
map. Positively no maps will be re-
ceived which have been folded or
creased in any place. Maps should be
rolled on a stick or placed in a paste-
board case for shipment. When a
ditch or reservoir derives its supply of
water through another ditch the name
of the natural stream from which the
water is first ^ taken should always be
given as the source of supply. AH
statements must be signed and sworn
to by the claimant or claimants.
When the claimant is a corporation the
name of the company should be sub-
scribed by (official title) to

the statement.

808 F0BM8.

Fonn of Title. '

Map of the

(ditch or) Reservoir.

County, Colorado.

Irrigation Division No Water District No.

Courses True, Magnetic Variation E.

Scale of Map inch= feet.

Form of Statement for Ditch.

Know all men by these presents: That the undersigned
claimant, whose postoffice address is

ha. . caused to be located The Ditch, as herein-
after mentioned, ha . . made these several statements relative there-
to, and filed the same in compliance with the laws of the State of
Colorado. The accompanying map, which shows the location of
said ditch, forms a part of this filing and is hereby made a part
thereof.

First. The headgate is located at a point, on the bank

of , from which it derives its supply of water,

whence the comer of Section No , Township ....,

Range , of the Principal Meridian, bears feet.

Second. The land to be irrigated consists of acres, located

as follows : Twp Rge P. M. (If the water is

claimed for other purposes than . irrigation it should be clearly
stated.)

Third.

'* on the top.
" on bottom.

per 1,000 ft.

The depth of said ditch
'* width ** *' *' '

*' grade ** '* '* '
"length'* '' '* ^ ....

Fourth. The carrying capacity of said ditch is cubic feet

per second of time (obtained by formula, giving the values of

any co-eflScients used), for which claim is hereby made for
purposes.

Fifth. The estimated cost is $

Sixth. Work was commenced by survey (or actual construction)
on the day of . . .- , A. D. 190

Seventh. Claimant's signature.

COLORADO.

809

The map of the ditch should show
the following:

First. The location of the head-
gate by course and distance to a cor-
ner of the public survey, or if upon
unsurveyed bnds, to. some natural ob-
ject of permanent character, so that
the same may be easily located. Sec-
ond. The general course of %he
stream should be shown and the name
given. Third. The route of the ditch
by course and distance. Fourth.
The legal 40-acre subdivisions and
other patented lands. Fifth. The
ownership of all lands crossed by the
ditch or canal. Sixth. The north di-
rection should be indicated by an ar-
row. Direction of flow of source of
supply should be indicated by an ar-
row. Seventh. Each map should
plainly show township and range.

Filings for pipe lines.

In making a filing for a pipe line,
the map should show the location of
the pipe line in the same manner as
for ditches. The statement should
give tlie diameter of the pipe, grade,
capacity and the beneficial purpose for
which the water is to be used. The
general form of statement as given
for ditches should be used.

Filings for seepage ditches.

In' making a filing^ for a seepage
ditch, the upper end of the ditch
should be tied to a legal government
land comer and the courses given as
in the case of ditches. The stotement
should g^ve the size, grade and carry-
ing capacity of the ditch. The source
of supply should be given as seepage.
The general form of statement as
given for ditches should be used.

Fonn of Statement for

Know all

men by these presents: That the undersigned

, claimant. . , whose postofBce address is

ha . .

caused to be located The Reservoir as hereinafter

mentioned, ha. . made these several statements relative thereto, and
filed the same in compliance with the laws of the State of Colorado.
The accompanying map, which shows the location of said reservoir,
forms a part of this filing and is hereby made a part thereof.
First. Height of dam feet.

(Note. — Height of dam is from the lowest point of the valley at dam up
to the highest point of embankment.)

Second. The following table gives the areas and capacities for
each foot in depth from the bottom of the outlet tube up to and
including the high-water line.

Depth in feet Area in sq. ft.

Bottom of

Outlet 0 f t

1 ft

2 ft

3 ft

4 ft

Capacity,
in cu. ft.

(High-water line.)

810 FORMS.

Third. Total capacity of said reservoir is cubic feet of

water, for which claim is hereby made for purposes.

Fourth. The source of supply of said reservoir is from

Fifth. The estimated cost $

Sixth. Work was copmienced by on the

, A. D. 190

Seventh. Claimant's signature.

The map of the reservoir should fully as the. high- water line.) Third.

show the following: The stream and name thereof upon

First. The location of the initial which the reservoir is located shoui<l

point of survey by course and distance be shown on the map. Fourth.

to a corner of the public survey, or .Ditches to and from the reserroir.
to some natural object, if upon un- j j- ^ '^v j

surveyed land. The initial iJoint of °*™^' ^»\™ ^^ ^^'f*'^^^' ^^^ «^^'

survey must be at one end of the pro- faction of water pnsm and capacity

posed dam. Second. The high- ^^ «"*>[«. «?*• *^»'**>- ^ Le«*^ *^:

water line of the reservoir by course *<^'® subdivisions and other patented

and distance, the location of the dam lands. Sixth. The ownership of the

and approximate contours at five foot ^^^ oo which the reservoir is located,

intervals, (^ote. — The five-foot con- or through which the inlet and outlet

tours are to show the general topogra- ditches pass. Seventh. The north di-

phy of the site within the high-water rection should be indicated by an ar-

line, and need not be run out as care- row.

Form of Affidavit.

State of Colorado,
County of. ... . ., — ss.

•. , being duly sworn on

oath, deposes and says, that having read and examined the map
and statements hereon, that the same are true to the best of \ns
knowledge and belief.

(Claimant's signature.)
Subscribed and sworn to before me this d^y of

Bl. Urn X«/ • . * • .

My commission expires

(Seal) Notary Public.

COLORADO. 811

Form of Affidavit when Olaimant is a Corporation.

State of Colorado,
County of — ss.

.' , of lawful age, being

£rst duly sworn upon oath, deposes and says that he is the [official

title or agent] of the Company, in whose behalf the

foregoing statement was made; that the [name of corporation]
Company is a corporation existing under the laws of the State of
; that the matters shown hereon in this map and state-
ment are true, and that affiant is duly authorized to sign said state-
ment and swear to this affidavit for and in behalf of said Com-
pany.

(Official Title)

Subscribed and sworn to before me on this ' day of

, A. I>. 190......

(Seal) Notary Public.

My commission expires on the day of , A. D.

.190

(Note. — If affidavit is signed by an autliority for so doing must accom-
agent or employe of the corporation, a panj map, but not be attached there-
copy of the power of attorney giving to.)

Form of Affidavit when Claimant is an Incorporated Town.

State of Colorado,
County of , — ss.

, Mayor of the Town of

, which was incorporated on the day of

, A. D. 18 , under the laws of the State of Colo-
rado, being duly sworn upon oath deposes and says, that having
read and examined the map and statements hereon, that the same
are true to the best of his knowledge and belief, and that this filing

was approved by the Board of Trostees of the Town of ,

on the day of , A. D. 190

Mayor of the Town of ,

Attest :

Clerk of the Town of
(Seal of Town)

812

FOBMS.

Subscribed and sworn to before me this dav of

A. D. 190

My commission expires

(Seal)

Notary Public.

Form of Engineer's Affidavit.

State of Colorado,
County of , — ss.

, being duly sworn on his

oath, deposes and says that he is the engineer of the

Ditch (or reservoir), that the survey of the same and the map
thereof was made by him (or that such map was made nnder his
instructions), and that such survey is accurately represented upon
this map; that he has read the statements thereon, and that the
same are true of his own knowledge.

Engineer (or Surveyor).

Subscribed and sworn to before me this day of

A. D. 190

My commission expires

(Seal)

Changes, enlargements and extensions.

In. ease of changes, enlargements
and extensions of ditch, the map must
show the change, part enlarged or the
extension. . The statement must give
the depth, width, grade, length, car-
rying capacity of the ditch before en-
largement and the same data after
enlargement. The time of commence-
ment and the work on the enlargement
and the estimated cost of the same
should be given. In case of changes
and enlargements of reservoirs the
map mtist show the high -water line
by course and distance of the original
reservoir and the high-water line by
course and distance of the reservoir
as enlarged or changed. The state-
ment should give the original capacity
and the capacity after enlargement,
date of commencement of work on

Notary Public.

the enlargement and estimate of cost
of same. '

Amended filings.

Whenever it is desired to amend a
filing, after same has been approved
by the State Engineer, it will be
necessary to file a new map and state-
ment on tracing cloth of the regula-
tion size. The amended filing should
show the original map and should give
the original statement and all amend-
ments thereto.

Preliminary filings.

The following is a quotation of the
statutes on the causes for prelimlnarf
filings: ""Whenever, through the ne-
cessity for extended surveys requirinjj
long periods of time, it shall be im-
practicable for the claimant or claim-

COLORADO.

813

ants to file a complete map and state-
ment witBn sixty days, as required
above, a map and statement as com-
plete as may be practicable shall be
filed, . . . ." The reason for filing
a preliminary map should be coTered
by the affidavit.

For a protracted enterprise, where
it is impossible to make complete sur-
veys and maps within the sixty days,

as complete a map and statement as
possible should be filed. This should
have the affidavit g^ven below, in ad-
dition to regular forms of claimant's
and engineer's affidavits, placed on
the maps, and properly signed and
sworn to by the claimant, which pro-
vfdes that a further and complete map
will be furnished for filing as soon as
the same can be completed.

Form of Preliminary Affidavit.

State of Colorado,
County of , — ss.

, being duly swoito on

his oath, deposes and says that though diligence has been used,

because of ,

it is impossible to make complete maps and statements within the
sixty days required, and that a further and complete map will be
furnished for filling as soon as the same can be completed.

(Claimant's Signature.)

Subscribed and sworn to before me this day of

A. D. 190

My commission expires

(Seal)

Notary Public.

Certificate on Hap.

State Engineer's OfiSce.

Denver, Colorado.
I hereby certify that this map and statement has been examined
and approved by me as agreeing with the statutes of the State of
Colorado, and the regulations of this ofi&ce, and was accept^ for
filing on the day of , A. D. 190

State Engineer.

By ,

Deputy.

814 FOBMS.

Certificate on Duplicate to be Filed in the Office of the Coontr

Clerk.

State Engineer's Office.

Denver, Colorado.
I hereby certify that this map and statement has been examined
and approved by me and is a duplicate of the one filed in the office

of the State Engineer on the day of , A. D.

190

State Engineer.

By ,

Deputy.

When Filing Consists of Two or More Sheets.

Sheet No. 1, to be Filed in the Office of the State Engineer.

State Engineer's Office.

Denver, Colorado.

' I hereby certify that this map and statement, consisting of

sheets, identified and designated as sheets No , No. , No.

(etc.) I respectively, has been examined and approved by me

as agreeing with the statutes of the State of Colorado and the

regulations of this office, and was accepted for filing on the

day of , A. D. 190

State Engineer.

By ;

Deputy.

Sheets No. 2, No. 3 (etc.), which are to be filed in the office of the State
Engineer.

State Engineer's Office.

Denver, Colorado.

I hereby certify that this is sheet No of the *.

(name of filing), a filing consisting of sheets, which

was approved by me and filed in this office on the day of

, A. D. 190

• >

State Engineer.

By ,

Deputy.

COLORADO.

815

Duplicate of Sheet No. 1, Which is to be Filed With the County Clerk.

State Engineer's Office.

Denver, Colorado.
I hereby certify that this map and statement, consisting of

sheets identified and designated as sheet No. 1, No.

2, No. 3 (etc.), respectively, has been examined and approved by
me and is a duplicate of the one filed in the office of the State
Engineer on the . . day of , A. D. 190

State Engineer.

Deputy.

Sheets No. 2, No. 3 (etc.). Which are to be Filed with the County Clerk.

State Engineer's Office.

•Denver, Colorado.

I hereby certify that this is a duplicate of sheet No of the

map and statement of the ^ a filing consisting of

sheets, which- was accepted for filing in the office

of the State Engineer on the day of , A. D.

190

State Engineer.

In General.

.The filing fee is one ($1) dollar for
each claim of water and one ($1)
dollar for eertifying to each dupli-
cate copj. One claim consists of one
ditch or one reservoir deriving its sup-
ply from one stream. Two claims
will consist of two ditches or reser-
voirs deriving their supply of water
from one source or one reservoir or

Deputy.

one ditch deriving its supply of water
from two different sources, etc. All
maps to be returned by mail should
be accompanied by postage. The
name and address of the engineer or
surveyor making the maps should ac-
company the filing. Time can be
saved by so doing when corrections
are necessary.

816 FOBM8.

[PxinUd blanks eoBUlnlnc tlMM formi can be obtainad from tba Stata

and ihovld ba nitd In practiea.]

IDAHO.

The following ineludes all forms from the application to appropriate to
the license, arranged in order; also form for transfer of use of water right
to use on different land. (As in force February 17, 1908.)

Applicatioii for Permit to Appropriate the Public Waters of the

State of Idaho.

1. Name of applicant

Postoffice address : P. O

County , State

I. If applicant is a corporation give :

(a) Date and place of incorporation

(b) The amount of capital stock

(d) The names and addresses of directors.

II. The financial resources of the applicant are :

(a) Cash on hand

(b) Treasury stock ; ,

(d) Othfer resources

2. The quantity of water claimed is

cubic feet per second.

3. Source of water supply

County of

4. Location of point of diversion

5. To be used for:

I. Irrigation and domestic use:

(a) Amount of land to be irrigated acres.

(b) In the following legal subdivisions

(A list of lands to be irrigated may be appended as a part of
this application.)

II. Mining, i>ower, manufacturing, or transportation purposes :

(a) To be used for

(b) Amount of power to be generated

horse-power.

(d) Is water to be returned to any stream f

(e) If so, name stream and locate point of return.

IDAHO. 817

[Printed bUnlu containing theae fonns can be obtained from the Btata Bnglneer,

and ihonld be nsed In practice.]

, 6. Estimated cost of wprks

7. Description of works for diversion :

I. Kinds of works (reservoir, dam, ditch, flume, pipes, or
otherwise) > . . .

II. Dimensions of works :

(a) Height of dam feet, length of dam at top

feet, length of dam at bottom feet,

material used in construction [state whether wood,
earth, stone or concrete] *

(b) Capacity of reservoir acre-feet.

feet.

(d) Conduit [state whether ditch, flume or pipe] width

at bottom feet, width at water line

feet, depth of water feet. Diameter

of pipe Average grade per mile is

feet. Length of conduit is miles, and

it crosses the following quarter sections

to land described in 5, I, (b) above [or, to point
described in 5, II, j^c), above], which is the point
of intended use.

8. Time required for the completion of the construction of

such work is years.

9. Time required for the complete application of the water to

the proposed use is additional years.

Be it known, That the undersigned hereby makes application for
a permit to appropriate the public waters of the State of Idaho as
herein set forth.

Applicant.

By ,

Agent.
Remarks :

APPROVAL OF STATE ENGINEER.

The number of this permit is

Date of first receipt of application , 190. . . .

Returned to applicant for correction , 190

Corrected application received , 190

Recorded in Book , Page , Approved , 190

This is to certify that I have examined the within application
for a permit to appropriate the pilblic waters of the State of Idaho
and hereby grant the same, subject to the following limitations and
conditions :

Water Rights — 52

818

FORMS.

[Prlsta4 blanki conteiBlng thtae foniis can be oMaliwd from the State Wngtinifr.

ABd thovld be nied in pnctiee.]

Good and sufficient bond to be filed in the sum of $

on or before , 190

Work to begin on or before , 190 , and to con-
tinue diligently and uninterruptedly to completion, unless tem-
porarily interrupted by circumstances over which permit holder
has no control.

One-fifth of the work above specified to be completed on or be-
fore n

The whole of said work to be completed on or before

The time for the proof of beneficial use of water appropriated
in accordance herewith, to eii:tent to

Witness my hand this dayof , 190. .

State Engineer.

(Endorsed: — ) No Permit. To appropriate water from

County, Idaho. Date of first receipt at ofiSce of

State Engineer Betui^ied to applicant for correc-
tion Corrected application received Recorded in

Book , Page Approved Work to begin

Bond to be filed One-fifth of work

to be completed • . . Whole worii to be completed

Pinal proof of use of water ^ Fees

INSTRUCTIONS.

Application will not be accepted nor
permit granted thereunder, unless the
following instructions are earefuUj
carried out in preparing application
blank and maps.

Aa To Application Blank,

Section 1. Insert name of appli-
cant. Also postoffice address and
county of residence. Subdivisions
**I'' and "II" are to be filled in
only when applicant is a corporation.

Sec. 2. State the quantity of water
claimed in second-feet, one second
foot being the maximum allowed for
60 acres, except in v^ry unusual cases.
One second foot is considered as the
equivalent of 50 miners' inches meas-
ured under a 4-inch pressure.

Sec. 3. Give name of stream or
lake from which water is claimed. If
a spring is the source of supply, give
legal description of 40-acre tract in
which it 18 situated. Where two or

more sources are claimed, name or de-
scribe each separately and specif}*
amount claimed from each.

Sec. 4. If point of diversion is od
surveyed land, locate same by giving
legal description of 40-acre tract in
which it is situated. If upon unsor-
veyed land, give approximate distance
to mouth of the stream from which
water is claimed, or to the mouth of
some creek putting into said stream
in the vicinity. Where there is to be
more than one point of divereioD.
number and describe each separatelj,
and place such diversion numbers od
the maps. In cases of springs on un-
surveyed land, tie to some prominent
and permanent land mark.

Sec. 5. Fill in Subdivision " I" if
the water applied for is to be used for
irrigation and domestic use. If in-
tended for other purposes, fiU in Sub-
division "II."

Sec. 6. Give estimated cost of all
construction works necessary to con-

IDAHO.

819

[Printed blanks containing tlieae forms can be obtained from the State Bnglneer,

and shonld be used in practice.]

duct water to place of use, including
dams, cQtches, fiumeB, etc. This
should not include installation of ma-
chinery for power.

Sec. 7. In Subdivision <<I" state
generally what diversion works will
be constructed. In Subdivision ' ' II "
give the dimensions of the works as
indicated by the various blanks and
give legal descriptions of quarter sec-
tions crossed by conduit.

Sec. 8. Indicate time desired with-
in which to complete the diversion
works, not exceeding five years.

Sec. 9. Indicate the time consid-
ered necessary to put water to benefi-
cial use after the completion of the
works, not exceeding four years.

As to Maps.

(A) Before permit will be granted
applicant must file two maps showing
the following details: (a) source or
sources of supply ; X^) point or points
of diversion; (c) route of ditch or
ditches delivering water within one
mile of each 160-acre tract of the
land to be irrigated; (d) lands to be
irrigated to be shown by cross-hatch-
ing or outlining. If for power pur-
poses, etc., the maps must show (a)
source or sources of supply; (b) point
or points of diversion; (c) route of
ditch or ditches; (d) point or points
of use; (e) point of return to stream
after use. (For form of map, see
page 911 below.)

■

(B) If the application is for more
than 25 second-feet, the maps must be
prepared from actual survey and must
be certified to by engineer in charge
of survey, certificates to contain (1)
engineer's name and postoffice ad-
dress; {2) date of survey.

General.

(C) A filing fee of $1.00 for the
first second foot appropriated and ten
cents additional for each additional
second foot or fraction must be paid
by applicant before permit will issue.

(D) Application will be accepted
temporarily provided application
blank be filed containing the informa-
tion required in Sections 1 to 4, in-
clusive, and statefnent as to purpose
for which water is claimed, whether
for irrigation, or power, etc. Appli-
cant wiU then have 60 days from the
date application is returned to him
for completion within which to run
surveys (where required), prepare
maps and pay filing fee. However, it
is best to submit maps and fees when
application is filed, in all cases where
a survey is not required, that is,
where the amount claimed is not
more than 25 second-feet.

(E) The space in the blank under
the head of ''Remarks'' is to be
used for matter strictly pertaining to
the application. It must not be used
for letter writing.

Notice of Proof of Completion of Works.

(This blank roust be filled out by holder of permit and forwarded by regis-
tered mail to the State Engineer at least 60 days before the time set for
completion of works.)

(P.O.)

(Date)....^. 190

To the State Engineer of the State of Idaho, Boise, Idaho .
Dear Sir:

Notice is hereby given that at M. on the day

of , 190. . . ., at County of ;

State of Idaho, before proof will be submitted* of the

completion of works for the diversion of cubic feet per second

820 . FORMS.

[Printed blanks containing these forms ean be obtained from the State Bnglneer,

and shonld be need in practice.]

of the waters of in accordance with the terms and

conditions of a certain permit heretofore issued by the State En-
gineer of the State of Idaho.

1. The name of the person or corporation holding said permit is

2. The postoffice address of such person or the place of business

of such corporation is , County of , State

of Idaho.

3. The number of such permit is , and the date set

for the completion of such work is

4. Said water is to be used for .purposes.

5. Said works of diversion will be fully completed on the date
set for such completion, and the amount of water which said works
are capable of conducting to the place of intended use, in accord-
ance with the plans accompanying the application for such permit
is oubic feet per second.

6. The amount of lands for which said water is available is
acres, particularly described as follows :

(In case of all canals or other works designed to divert and carry more
than 50 cubic feet of water per second, the following certificate mast be
signed bj a well known and competent engineer.)

I hereby certify that the facts set forth in the above notice are
true.

Engineer.

desire, .that the above notice be published, according to

law, in the of , published in the county"

in which said works are situated ; the expense of which publication

will be borne by ^

(Signature) *.

(Endorsed: — ) No Notice of Proof of Completion of

Works. Received Date of proof

Place Notice sent to for publication on

Notice for Publication.

Notice is hei^by given that at M. on the day of

, 190 , at , County of. ,

State of Idaho, before , proof will be submitted of the

completion of works for the diversion of cubic feet per second

of the waters of in accordance with the terms and con-
ditions of a certain permit heretofore issued by the State Engineer
of the State of Idaho.

IDAHO. 821

[Printed blanks containing tlieM fonns ean be obtained from the State Engineer,

and should be used in praetioe.]

1. The name of the person or corporation holding said permit
is

2. The postoffiee address of such person or the place of business

of such corporation is , County of , State

of Idaho.

3. The number of such permit is , and the date set for

the completion of such work is

4. Said water is to be used for purposes.

5. Said woriffl of diversion will be fully completed on the date
set for such completion, and the amount of water which said works
are capable of conducting to the place of intended use, in accord-
ance with the plans accompanying the application for such permit,
is cubic feet per second.

6. The amount of lands for which said water is available is
acres, particularly described as follows:

State Engineer.

Permit No

Proof of Completion of Works.

Deposition of Holder. *

•

Question 1. — State your age, residence, occupation and post-
ofBce address.

Answer

Ques. 2. — If acting in behalf of a corporation, state its name,
principal place of business, your position with reference to same,
and your authority for appearing in its behalf.

Ans

Ques. 3. — State number and date of permit, amount of water you
are authorized to divert, source, and point of diversion.

Ans

Ques. 4. — State purpose for which water is to be used, and, if for
irrigation, state the number of acres and give description of the land
you intend to reclaim.

Ans

Ques. 5. — State whether 6r not the water has been turned into
your works of diversion, and, if so, when and to what extent.

Ans

Ques. 6. — State whether or not the works of diverson are fully
completed, and whether or not they comply in all respects with
the terms of the permit.

Ans

822 FORMS.

[Printed blaziks conUlAing theie forms can bt oUAlBod from tlio Mate BngteMt,

and ilioiild bo niod in practloo.]

Ques. 7. — ^If the works of diversion do not comply with all the
terms of your permit, state fully those particulars in which there
is any variance.

Ans

Ques. 8. — Give description of works, state dimensions and capac-
ity of each part, and ^ve cost of same.

Ans

(Sign here.)

I hereby certify that the foregoing, testimony -was read to the
above subscriber before its signing, that I believe him to be the
person he represents himself to be, and that said testimony was

subscribed and sworn to before me, at my office in ,

County of , State of Idaho, on this

, day of A. D. 190....

(Endorsed: — ) Permit No To iippropriate

second-feet of water from County, Idaho. Bj

Proof of Completion of Works. Deposition of

Holder. Received and filed

The depositions of two witnesses, in this form, taken separately, required ii

each case.

Permit No

Proof of Completion of Works.

Deposition of Witness.

Question 1. — State your name, age, residence, occupation and
postoffice address.

Answer

Ques. 2.-— Are you acquainted with , the

holder of Permit No , authorizing the diversion of

second-feet of the waters of at ,

for purposest How long have you known

him, and where does he reside f

Ans

Ques. 3. — Have you read or heard read said Permit No ,

and are you familiar with its terms and conditions f

Ans

Ques. 4. — (If for irrigation purposes.) Are you acquainted
with the land proposed to be irrigated under said permit t If so,

IDAHO. 823

[Printed blaaki eonutnlnc tliMe f oniu can 1m obtained ftom the State Bnglneer,

and itaoidd be need In praetice.]

describe same, state its character, and give your estimate of the
amount of water required for its profitable cultivation.

Ans

Ques. 5. — Are the works of diversion fully completed and of
sufficient capacity to convey the entire amount of water set out in
the permit from point of diversion to place of usef

Ans ;

Ques. 6. — ^Describe the works of diversion as they now exist, and

give your estimate of their capacity f
Ans

(Sign here.)

I hereby certify that the foregoing testimony was read to the
above subscriber before its signing, that I believe him to be the
person he represents himself to be, and that said testimony was

subscribed and sworn to before me, at my office in ,

County of , State of Idaho, on this

...day of , A. D. 190

(Endorsed: — ) Permit No To appropriate

second-feet of water from County, Idaho. By

Proof of Completion of Works. Deposition of

Witness. Received and filed '.

Permit No

Oertiflcate of Oompletion of Works.

To All Whom It May Concern :

This is to certify that : of

, County of , and

State of , the holder of Permit No.

, issued upon Application No bearing date of

priority of second-feet of the waters of

County of , State

of Idaho at , for pur-
poses, ha fully complied with the provisions of the laws of the

State of Idaho relating to the proof of completion of the works of
diversion set out and described -in said permit; that said works
are adequate for diverting and conveying to the place of intended

use second-feet of water; and that the

lands proposed to be irrigated by the use of said water are de-
scribed as follows, to wit :

Witness my hand this day of ,

A. D. 190

State Engineer of the State of Idaho.

824 FORMS.

[Pxlitted blaaki contalalBC tlieie forms esn bt obUlaod from tlio Stale Kngliiiitr,

and thould 1m used In praetiee.]

(Endorsed: — ) Permit No ' Certificate of Completidn of

Works. Dated , 190 Stream

County ^ . . . Amount Date of priority

Recorded in book of

page

Permit No

Notfce of Proof of Application of Water to Beneficial Use.

(This blank must' be filled out by holder of permit and forwarded to the
State Engineer at least 60 days before the time set for application of water.)

(P. O.)..

(Date)

To the State Engineer of the State of Idaho, Boise, Idaho :

Dear Sir — ^Notice is hereby given that at M. on the

day of , 190 , at County

of , State of Ididio, before proof will

be submitted of the application to beneficial use of

cubic feet per second of the waters of in

accordance with the terms and conditions of Permit No

heretofore issued by the State Engineer of the State of Idaho.

1. The name and postofSce address of the person or corporation
holding said permit are

2. The use to which said water has been applied is '

3. The amount applied to beneficial use is

4. The place where said water is used is (if for irrigation, give
full and accurate description of the lands irrigated)

5. The name of the canal or ditch or other works by which said
water is conducted to such place of use is

6. The right to take the water from such woriks is based upon
Permit No

7. The source of supply from which such water is diverted is. .

• ■■•••■••■•••■•#•••••00 •••• •••••%*ooo^^tt^^^^sco#a^MA»*A^o* *

8. The date of the priority which said user is prepared to es-
tablish is

I desire that the above notice be published, according to law, in

the of , published in the

county in which said water is to be used; the expense of which
publication will be borne by me.

(Sign)

(Endorsed: — ) No Notice of Proof of Application ol

Water. Received Date of Proof

Place Notice sent to for Publication

IDAHO. 825

LPrlnted blaziks containing tlieie forme can be obtained from the State Engineer,

and flbonld be need in practice.]

Notice for Publication.
Notice of Proof of Application of Water to Beneficial Use.
Notice is hereby given that on the day of , . ^

190 , at , County of , State of

Idaho, proof will be submitted of the application to beneficial use

of cubic feet per second of the waters of

in accordance with the terms and condi-
tions of Permit No , heretofore issued by the State Engineer

of the State of Idaho.

1. The name and postoffic'e address of the person or corporation
holding said permit are ,

2. The use to which said water has been applied is

3. The amount applied to beneficial use is .«

4. The place where said water is used is (if for irrigation, give
full and accurate description of the lands irrigated )«

5. The name, of the canal or ditch or other wor^ by which said
water is conducted to such place of use is

6. The right to take the water from such works is based upon
Permit No ,

7. The source of supply from which such water is diverted is: . .

8. The date of the priority which said user is prepared to estab-
lish is

Permit No

Proof of Application of Water to Beneficial Use.

Deposition of Holder.

Ques. 1. State your name, age residence, occupation and post-
o£9ce address.

Ans

Ques. 2. If acting in behalf of a corporation, state its name,
principal place of business (if a foreign corporation, give name
and postoffice of statutory agent), your position with reference to
same, and your authority for appearing in its behalf.

Ans

Ques. 3. State number and date of permit, and date of priority
you propose to establish under the permit.

Ans

826 FOBMS.

[Pxlnttd blaaki eonUiidiig tlwM formi can 1m obtained firom tlM fltato BaftaMci,

and Hioidd b« vMd in pnetico.]

Qaes. 4. State source of water supply and give exact location
of point of diversion.
Ans

Ques. 5. Describe your works of diversion, and state amount of
water they are capable of conveying from point of diversion to
place of use, and give name of cantd or ditch or ot^er works by
which water is conducted to such place of use.

Ans •

Ques. 6. State for what purpose water is used and describe
place of use. (If for irrigation, name each subdivision in which
used, and number of acres in each subdivision that have actually
been irrigated with said water.)

Ans .*

Ques. 7. If for other than irrigation purpose, state how applied,
amount of horse-power generated, etc.

Ans :

Ques. 8. What is the minimum amount of water required for
the use specified above t

Ans

Ques. 9. If you are not the person or representative of the cor-
poration to whom above-mentioned permit was originally issued,
please state how ownership was acquired by present holder.

Ans

Ques. 10. State when,^how, in what amount and to what ex-
tent the water diverted under above-mentioned permit has been
used.

Ans

(Sign)

I hereby certify that the foregoing testimony was read to the
above subscriber before its signing, that I believe him to be the per-
son he represents himself to be, and that said testimony was sub-
scribed and sworn to before me, at my office in

County of , State of Idaho, on this day

of A. D. 190

(Endorsed*: — ) Permit No Proof of Application of Water

to Beneficial Use. Deposition of Holder. Amount of water

second-feet. Source County

Purpose Place of use

Date of priority Received and filed

IDAHO. • 827

[Printed btankt eontatninc tlMM formi can be oliUtiMd ftom tlM State Baglneer,

and aheiild be need in praellee.]

The deposition of two witnesses on this form taken separately required in

each case.

Permit No

Proof of Application of Water to Beneficial Use.

Deposition of Witness.

Ques. 1. State your name, age, residence, occupation and post-
office address.

Ans

Ques. 2. Are you acquainted with the holder

of Permit No ? How long have you known him, and where

does. he reside f

Ans

Ques. 3. Have you read or heard read said Permit No ,

and you are familiar with its provisions and conditions!

Ans

Ques. 4. State source of water supply, place of diversion, and
describe works for conveying water from point of diversion to place
of use.

Ans

Ques. 5. How many second-feet of water do you estimate said
works will safely conduct to place of use, and how much water have
you seen being so conveyed t

Ans

Ques. 6. State for what purpose water is used and at what
place. (If for irrigation, give each subdivision in which water has
been used and number of acres irrigated in each subdivision.)

Ans

Ques. 7. If for power, or other purposes than irrigation, state
how water has been applied and to what extent.

Ans '.

Ques. 8. (If for irrigation.) State character of land that has
been reclaimed, and give your estimate of the amount of water
• required for its profitable cultivation.

Ans

Ques. 9. Have you any interest in the works, water or lands
above mentioned f If so, in what way and to what extent f

Ans

Ques. 10. State when, how, in what amount and to what extent
you have witnessed the application to beneficial use of the water
diverted under said permit.

Ans

(Sign)

828 FORMS.

[Piintad bUnkg containing tlieie formi can be obUlnod from tlio Bteto Bngfaaer,

and thOQld be vaod in praettea.]

I hereby certify that the foregoing testimony was read to the
above subscriber before its signing, that I believe him to be the
penson he represents himself to be, and that said testimony was

subscribed and sworn to before me, at my office in

County of , State of Idaho, on this day

of , A. D. 190

(Endorsed : — ) Permit No Proof of Application of Water

to Beneficial Use. Deposition of Witness. Received and filed

State of Idaho.
Water License No. .

Whebeas, On the day of , A, D.

190 , of , County of and State

of , duly made application (No )

to me for a permit to use cubic feet per

second of the waters of , County of ,

State of Idaho, for purposes ; and,

Whbbeas, On the day of , A. D.

190 , Permit No was issued to said applicant for

the diversion of said water, and providing for the completion of

the works of diversion therein described on or before the . . .•

day of , A. D. 19 , and for the application to bene-
ficial use of said water on or before the day

of , A. D. 19 . . . . ; and,

Whebeas, On the day of , A. D.

19 , the holder. . of said permit duly made proof of the com-
pletion of adequate works for the diversion of

cubic feet per second of said waters, as evidenced by my Certifi-
cate No , dated , confirming the completion

of works of sufficient capacity for diverting and conveying to the
place of intended use cubic feet per second of wa-
ter, with date of priority of and,

Whebeas, On the day of , A. D.

19 , proof was duly made of the application to beneficial use

of cubic feet per second of said water ;

Now, Therefore, By virtue of the authority vested in me by the
laws of the State of Idaho, I hereby grant and confirm to

of , the holder. . and owner. . of

said Permit No ,,a perpetual right, dating from ,

to the use of cubic feet per second of the waters

IDAHO. 829

[Printed bUnka conuinlng theie forms can be obtained from the State Engineer,

and should be used in practice.]

of , in the Cottnty of , and

State of Idaho, or so much thereof as may be necessary for the pur-
poses hereinbelow mentioned, to be diverted at and

conducted to and upon -.for the purpose. .

of subject, however, to the

laws of the State of Idaho applicable to a license for the use of the
waters of the State, and subject, also, to the local or community
customs, rules and regulations which have been or may be adopted
from time to time by a majority of the users from a common source
of supply, canal or lateral from which such water may be taken,
when such rules alid regulations have for their object the economical
use of such water.

Witness my hand and the seal of my office, at Boise, Idaho, this
day of , A. D. Nineteen Hun-
dred and

State Engineer.

( Endorsed : — ) State of Idaho. Water License No To

Source of Supply

County. Amount Sec. Feet. Point of Diversion

Place of Use .* Purpose

Date of Priority Recorded in Book

of Page

Application for Transfer of Water Bigbt.

State of Idaho,
County of , — ss.

, being first duly

sworn, deposes and says :

That his name is ; that he is

of lawful age, a citizen of the United States and of the State of
Idaho, and that his postoffice address is

That he is the owner and using a certain water right of

, County of , State of Idaho,

decreed to by decree of Judge , of the

Judicial District of the State of Idaho, in and for

the County of in the case of

VB , said decree bearing date of

(or obtained by virtue of License No , issued by the State

Engineer of the State of Idaho, dated ), for

the purpose of irrigating the following described lands situate, ly-

830 FORMS.

[Printed blaaki eonuinlxig these forms can be obtained from tlie State BngJoev,

and should be need in praetiee.]

ing and being in the Conntj of and State of Idaho.

to wit: •

and am the person (or corporation) to whom such right so issaed
or have become the owner tiiereof in the following manner^ i, e. ...

as per

abstract of title of said water right hereto attached and made a
part of this statement ;

That said waters are now diverted from said stream at

and conducted

to the above described lands through

as per map hereto attached

and of this affidavit made a part ;

That affiant and petitioner desires to abandon the use of

of said water upon the above described land, and to

convey and use same upon the following tract, situate, lying and

being in the County of and State of Idaho, to

wit :

That his reasons for desiring to make such transfer are as fol-
lows :

That he intends to divert and convey said of

water to the tract of land last above described in the following

manner, to wit. as set forth upon the

map hereto attached; and

That no one will be injured by such transfer.

Wherefore, Affiant and Petitioner prays that the State Engineer
of the State of Idaho shall issue to him the proper certificate au-
thorizing such transfer, and give proper notice of the same to the
Water Commissioner of this Division, in accordance with the pro-
visions of Section 11, House Bill No. 146, of the Laws of the
Seventh Session of the Legislature of the State of Idaho.

Subscribed and sworn to before me this day of

, A. D

State of Idaho,
County of , — ss.

and being first

duly sworn, each for himself, and not one for the other, deposes
and says: That he is a citizen of the United States and of the

State of Idaho, residing at that he is a user of water

from , County of , State of Idaho;

that he has read or heard read the foregoing affidavit and petition

IDAHO. 831

[Printed blanks containing theie forms can bo obtained ftom tbe State Engineer,

and should be need in practice.]

■

of , and is familiar with its allegations, and with

the water right and lands therein mentioned and described and is
not in any way interested in either, nor in any way related to said
petitioner; that the statements and allegations therein made are
true of his own knowledge ; and that no one will be injured by the
granting of the certificate authorizing the transfer therein peti-
tioned.

Subscribed and sworn to before me this day of

A. D. 190

State of Idaho,
Count V of

I, , Watermast^r of , County of

, State of Idaho, whose postoffice address is

, have read or heard read the foregoing affida-
vit and petition of , and, of my own knowledge, be-
lieve the same to be true as to all matters therein alleged, and that
no one will be injured by the transfer prayed to be authorized;
and I hereby indorse my approval of said petition, and request
that the State Engineer will issue the certificate of transfer as
petitioned ; or (do not approve of the issuance of the certificate of
transfer prayed for) for the following reasons :

Watermaster.

Notice having been duly published for thirty days of the inten-
tion of the above-named to apply to the State

Engineer of the State of Idaho for a certificate authorizing the
transfer of water as set forth in his affidavit and petition herein,
and an opportunity having been given to any and all persons oppos-
ing said transfer to present their objections in a public hearing

before me at , on , according to

the terms of said notice;

And it not appearing at said hearing that anyone would be
materially injured by such transfer:

I hereby recommend that the said State Engineer of the State
of Idaho issue his certificate to said applicant, authorizing the trans-
fer as prayed for in his petition; or (and it appearing at said hear-

832 FORMS.

[Prlatad blaaki containing theta forms can be obtained from the State Engbuei.

and elioiild be need In practioe.]

ing that the following injuries would be sustained by others if such

transfer is permitted ,

1 hereby recommend that the State Engineer do not issne the cer-
tificate authorizing the transfer sought hereinabove).

Commissioner of Water Division No.
By

(Endorsed: — ) No Application for Transfer of Water

Right. From To Stream

County Applicant. Received

Approved Certificate No is-
sued and recorded in Book of Trans-
fers, at page

Notice of Proposed Transfer of Water Bight.

Notice is hereby given that of ,

has applied to the State Engineer of the State of Idaho for a cer-
tificate authorizing him to transfer the use of of

the water of from the

land upon which it is now used, i. e to the

following described tract :

And that, on the ; day of , A.

D. 190 , at before the Water

Commissioner of this Division, or his authorized agent, the oppor-
tunity will be given to any and all persons to appear and present
for his consideration any reason or reasons why a certificate should
not be issued authorizing such transfer.

Full details of the proposed transfer may be obtained from
, Watermaster of said stream.

NEBRASKA. 833

[Printed bUmki containing these forme can be obtained from the State Engineer,

and Hiould be used in praetioe.]

NEBRASKA.

(As in force February 19, 1908.)

Permit No

Water Division, No District, No

The above to be filled out at the office of the Board.

Application for Permit to Appropriate the Waters of the State

of Nebraska for

I, of the

Name of person signing application.

County of

City or Village of which a resident.

State of being

'Name of County. Name of State.

duly sworn, upon my oath say:

1st. — That the name of the applicant herefor is

Post-

Name of person or company for whom application is made.

office Addi^, No .....' Street,

Number and Street.

, County,

City or Village. County. State.

2d. — That it is proposed to use the water applied for herein, for

state the purpose for which water is to be appropriated*

' 3d. — That the name adopted for the proposed ditch or canal is the

Name of the canal.

4th. — That the source of the proposed appropriation is

Name of creek or river from which water is to be taken.

5th. — That the amount of the appropriation desired is

cubic feet per second of time.

Number of cubic feet.

6th. — That it is proposed to locate the headgate on the

: bank of the stream,

North, South, East or West.

in of see-
Describe lot or forty acres in which situated.

tion , Township Range

Number. Number.

Water Right! — 53

834 FOBMS.

[Printed bUnkf containing ttaMe forms can bo obtained from tlio State BagbMii,

and Hioidd be need in practice.]

of the Principal

Number, East or West. Number.

Meridian.

7th. — That the said ditch or canal will be!

miles in length, and pass through the

Number of miles.

following sections of land, as shown on the accompanying town-
ship platSy viz. :

. •..*.•••.••■••.•..•.••..•.•..••...«..■.••.■...*•.••..•*• •
Describe each section through which canal passes, stating Township ud

Range.

8th. — That the dimensions of the proposed ditch or canal will
be as follows: HEADGATB— width in dear

Number of feet.

feet; depth of water on floor at low water feet.

Depth in feet.

CANAL OB DITCH.

Location. Depth. Width on Bottom. Width on Top. Grade per Mile.

Below headgate feet feet feet feet.

At mile feet feet. ., feet feet

At mile feet feet feet feet.

At mile feet feet feet feet

Give dimensions at each, point where reduced in size, stating miles fron

headgate.

9th. — That the material to be removed amounts to

.* cubic yards, consistiBg of

Number of yards.

State character of material to be moved; whether rock, boulders, sand, elij,

etc.

and that the total length of fluming required is

• feet.

Number of feet.

10th. — That the estimated cost of the proposed construction is

as follows: Earthwork, $ , Fluming, $ >

Headgate, $ , Other expenses, $ , Total

11th.— ^hat the proposed ditch or canal is to be built with the
intention of supplying water to irrigate the following secti(ms or
quarter-aections of land, viz.:

Give sections and quarter-sections, stating Number, Township, and Bange.

amounting inallto acres.

Total number of acres.

NEBRASKA. 835

[Printed blaziks eontainlng these fonns can be obtained from the State Engineer,

and flbonld be need in praetiee.]

12th. — That construction is to be begun within

Number of days or months.

of the date hereof, and the proposed works are to be completed on or
before : ,

state day, month, and year.

13th. — That the time estimated as necessary to provide for the
application of the amount of water herein applied for to the bene-
ficial use above stated is years from

Number of years.

, 190

Month and day. •

14th. — That the relation which the subscriber to this affidavit

bears to said ditch, or canal, or other work, is that of

and

State whether owner, manager, superintendent, etc.

that he is authorized to make this affidavit in behalf of the inter-
ests affected.

Signature.

State of ,

•County of , — ss.

I hereby certify that the foregoing application was sighed in my

presence and sworn to before me by : this

day of , 190

(Seal)

Notary Public.

State of Nebraska,

Office State Board of Irrigation,^ — ss.

This is to certify that the foregoing application has been ex-
amined

STATE BOARD OP IRRIGATION,

State Engineer, Secretary.

This is to certify that the foregoing application has been ex-
amined and is hereby granted subject to tiie following limitations-
and conditions :

1st The work of excavation or construction shall begin on or
before , 190

2d. The time for completing the work of construction shall ex-
tend to , 190. . ; .

3d. The time for completing the application of water to the
beneficial use indicated shall extend to 190

836 FORMS.

[Printed blanks containing these forms can be obtained from the State Engineer,

and shonid be need in praetioe.]

4th. The water appropriated shall be used for the purpose of
irrigation.

5th. The prior right o*f the owners of land bordering on this
stream, or thit)ugh which this stream flows, to so much of the natural
flow of the stream as is necessary for domestic uses, including stock
water, must be respected.

6th. The prior rights of all persons who, by comipliance with the
laws of the State of Nebraska, have acquired a right to the use of
the waters of this stream must not be interfered with by this ap-
propriation.

7th. 'the amount of the appropriation shall not exceed

cubic feet per second of time ; neither shall it exceed the capacity
of said ditch or canal, nor the least amount of water that experience
may hereafter indicate as necessary for the production of crops in
the exercise of good husbandry ; and, further said appropriation, un-
der any circumstances, shall be limited to one-seventieth (1-70) of
a cubic foot per second of time, for each acre of land to which wa-
ter is actually and usefully applied, on or before

STATE BOARD OF IRRIGATION.

State Engineer, Secretary.
Approved , 190

(Endorsed : — ) No Division No District No. ....

Application for a Permit to Appropriate the Waters of the State
of Nebraska.

State of Nebraska,

Office State Board of Irrigation,-H3s.

This instrument was filed for record at o'clock

noon, on the day of

190 and duly recorded in Book of the Record of

Applications for Appropriations on Page

State Engineer, Secretary.

Township Plats— Showing Line of Ditch or Canal.

(This accompanies the application for permit.)

The following township plats, in num-

No. filled out.

ber, show where the said ditch or canal heads, and where it crosses
each' quarter-section of land along the line of its course.

.•••.•••....•*.•. ••••.■•.••.•••••■••■••■••*•

Signature of person signing application.

XEBHASKA.

837

[Printed blanks containing theM forms ean be obtained from the State Engineer,

and should be used In practice.]

NOTICE.— The blanks for No. of
Township, Range, etc., at top of
blank plats, must be properly filled
out. Plat No. 1 should be used in
which to locate the head of the canal
and Plats No. 2, No. 3, etc., must be
used in their order for each succes-
sive township into which the canal
enters. All tracing, lettering, etc.,
must be done in ink, free from blurs
or blots. If four blank plats are not

sufficient to show the entire line of
the canal, a special additional blank
will be furnished free of charge, up-
on application to the office of the
State Board.

(Here follows township plat in the
usual form as shown on page 910 be-
low. Enough plats must be used to
show the whole ditch in all townships
into which it extends.)

Application No

Water Division No , District No

Application for Permit to Appropriate the Waters of the State

of Nebraska for Power.

I, of

(Name of person signing application)

County of

(City or Village of which a resident) (Name of County)

State of being duly sworn upon my oath say :

(Name of State)

1st. — That the name of the Applicant is

(Name of person or company for whom application is made)

Post-oflSce address, No Street,

(Number of Street) (Town)

County,

(County) (State)

2nd. — That the water is to be used for the purpose of operating a

3d. — That the name adopted for the plant is the

4th. — That the source of the appropriation claimed is

(Stream)

5th. — That the amount of the appropriation claimed is

cubic feet per second of time.

6th. — That the headgate of the race is located on the

bank of the stream in of section ,

Township , Range ,, of the

Principal Meridian.

7th. — That the said race will be feet in length,

and pass through the following sections of land as shown on the
accompan3ring township plats, viz. :

8th. — That the dimensions of the race will be as follows :

838 FORMS.

[Printed blanks containing t]i«M forms can be obtained from Urn Stata Engineer,

and should be need in practice.]

AT HE ADGATE— width in clear feet; depth

of water on floor at low water feet.

BELOW HEADGATE— depth feet ; width on

bottom feet; width on top feet;

grade per mile feet.

9th. — That the works will be located on

10th. — That the power is to be obtained from a

(Kind of wheel)

wheel, manufactured by , catalogue . No ,

diameter of wheel inches.

(If the wheel is not a turbine give dimensions and kind of wheel)

11th. — That the capacity of the plant will be

12th. — That the net power required from the shaft of the wheel
to operate the mill when in good repair and proper running order
wiU be horse-power.

13th. — That the maximum head or fall that it is practical to

maintain at average low- water stage of stream is

feet.

(This should give the difference in height between the level of the water in

the forebay and in the tail race)

14th. — That the amount of water necessary to operate said plant

will be cubic feet per second.

15th. — That the /stream furnishes :

(a) At low-water stage cubic feet per second.

(b) At medium stage cubic feet per second.

16th. — That the work of construction will begin on or before the

day of

17th. — That the works will be completed on or before the

day of

18th. — That the works will be put in operation on or before the
day of

19th. — That the plant will be operated

(Continuously or otherwise)

20th. — That the proposed cost of said plant is as f oUoWs :
Dam $ ; Race $' ; Machinery $ ; Buildings

$ ; Total $

21st. — That the relation which the subscriber to this affidavit

bears to said plant is that of

(State whether owner, manager, etc.)

and that he is authorized to make this affidavit in behalf of the
interests affected.

NEBRASKA. 839

[Printed blanks eontalning theie forms ean be obtained from the State Engineer,

and should be nsed In praetlee.]

State of Nebraska,
County of , — ss.

I, hereby certify that the foregoilig application was signed in

my presence and sworn to before me by this

day of , 1

Notary Public.

This is to certify that the foregoing application has been exam-
ined and is hereby granted subject to the following limitations and
conditions :

1st. — The work of excavation or construction shall begin on or
before , 1

2nd. — The time for completing the work, or perfecting the ap-
propriation, shall extend to ,1

3d. — The time for completing the application of water to the
beneficial use indicated shall extend to , 1

4th. — The amount of the appropriation shall not exceed

cubic feet per second.

5th. — The rights of all persons who by compliance with the laws
of the State of Nebraska governing in the appropriation of water,
or who by continuous beneficial use have acquired the right to the

use of the waters of or any tributary stream, or

any stream to which is tributary, prior to the

date of this filing, shall not be interfered with by this appropria-
tion.

6th. — This grant is made subject to the provisions of Section 43,
Article 2, of the Nebraska Irrigation Law, which gives preference
to appropriators using the water for domestic and agricultural
uses, over those using it for manufacturing purposes.

Approved. State Engineer, Secretary.

Township Plats as in preceding form.

[Endorsed] : No Division No , District No

Application for a Permit to Appropriate the Waters of the State
of Nebraska for Power. State of Nebraska, 0£Sce State Board of

Irrigation, — ss. This instrument was filed for record at

o'clock, noon, on the day of , 1 , and

duly recorded in Book of the Record of Applications for Ap-
propriations on Page , State Engineer, Sec-
retary.

NOTE — ^This applieation, if approved, must be f oUowed within six months
by a map or plat on a scale of not less than two inches to- the mile, show-
ing the location of the works and the coarse of the stream.

840 FOBMS.

IB yiactiat.]

(The following is accompanied bj townahip plata similar to those in the pre-
ceding form.)

Claim, No Priority, No

Water Division, No , District, No.

(The above to be filled oat at the office of Board.)

Claim for the Wat«n of the State of Netaraaka.
(For Adjndicatioii of Badsting Priority.)

Concemijig this form Mr. Adna age of the law of 1895, and as nearh

Dobeon, State Engineer, writes under thirteen years have elapaed nnee tit:

date of Febroary 19, 1908: "The paaaage of this law, we do not r^

form of blank given in jonr book was ceive anj more of these daims at tbc

for rights acquired prior to the pass- present time/'

I, : of fte

(Name of person signing claim.)

County of

City or Village of which a resident.) (Name of County.)

State of being dnly sworn, upon

(Name of State.)

my oath say :

Ist. — That the name of the claimant is

. .' Postoffice Address

(Name of person or company for whom claim is made.)

No Street,

(Number and Street.) (City or Village.) (County;

County,

(State.)

2d. — That the water is claimed for the purpose of

(State the purpose for which water is claimed.)

3d. — That the name adopted for the ditch or canal is the

(Name of the ditch or canal.)

4th. — That the source of the appropriation claimed is

(Name of creek or river from which water is claimed.)

5th. — That the amount of the appropriation claimed is

cubic feet per second of time.

(Number of cubic feet.)

6th. — That the headgate is located on the

(North, South, East, or West!

bank of the stream, in of Section

(Describe lot or forty acres in which situated.) (Nnmber.l

NEBRASKA. 841

[Prtnted blMiks eontaining theie forms can be olitaliied ftom tli« 8tet« BnginMi,

and shonld be lued in pracHeo.]

Township , Range of the Principal

(Number.) (Number, East or West.) (Number.)

Meridian.

7th. — That the said ditch or canal, miles in length,

(Number of miles.)
passes through the following sections of land, as shown on the
accompanying township plats, viz. :

(Describe each section through which canal passes, stating Township and

Bange.)

(a) That the portion of said ditch or canal, miles

(Number of miles)

in length, indicated on said plats by a black line is completed.

(b) That the portion of said ditch or canal, miles

(Number of miles.)

in length, indicated on said plats by a red line is not completed.

8th. — That the dimensions of said ditch or canal are .(^nd wiU
be for the uncompleted portions) as follows :

HE ADGATE— width in clear feet; depth of water

(Number of feet.)

on floor at low water feet.

(Depth in feet.)

CANAL OR DITCH.

Location. Depth. Width on Bottom. Width on Top. Grade per Mile.

Below headgate feet feet feet feet.

At mile feet feet feet feet.

At. . . . mile feet feet feet feet.

At. . . . mile feet feet. feet feet.

At mile feet feet feet feet.

At mile feet. . .' feet feet feet.

At mile feet feet feet feet.

(Grive dimensions at each point where reduced in size, stating miles from

headgate.)

9th. — That the total excavation amounts to cubic

(Number of yards.)

yards of material, consisting of , and that the

(State character of material; whether rock, boulders, sand, clay, etc.)

total length of fluming required is feet.

(Numbfer of feet.)

(a) That the material thus far removed amounts to

(Number of yards.)

cubic yards.

(b) That the fluming completed amounts to feet.

(Number of feet.)

842 FORMS.

[Printed blanks containing tb«M formi can be obtained from tlM flteta •»»t<«— ^

and thoold be nied in practice.]

10th. — That the estimated cost of said ditch or canal is as fol-
lows: Earthwork, $ ; Fluming, $ ; Headgate, $ ;

Other expenses, $ ; Total, $

(a) That the expenditures thus far incurred are as foUovs:

Earthwork, $ ; Fluming, $ ; Headgate, $ ; Other

expenses, $ ; Total, $

11th. — That it is the intention that the said ditch or canal shall
supply water to irrigate the following sections or quarter-sections
of land, viz. :

(Give sections and quarter-sections, stating number Township and Bange.>

amounting inallto acres.

(Total number of acres.)

12th. — That the actual work of excavation and construction was

begun on the day of , 18 , and the

works .completed, and liie appropriation perfected on

(Were, or will be.)

or before the day of , 1

(a) That this claim is made, under and by virtue of rights
deemed to have been acquired by.

(State whether by application of water
to a beneficial use without objection, or by posting notice and filing same
with County Clerk, as prescribed by law. If by use, state nature, date of
commencement, and period of duration; if by filing, state date of posting
notice, date of record, and where recorded.)

(b) That water turned into said ditch or canal on

(Was, or wiU be.)

or before the day of 18

13th. — That the time estimated as necessary to provide for the
application of the amount of water herein claimed to the beneficial
use above stated, is years from April 4th, 1895.

(State number of years.)

(Number of acres.)

irrigated from said ditch or canal during 189

(d) That it is estimated that there wiU be

^ (Number of acres.)

acres of crops irrigated from said ditch or canal during 189

14th. — That the relation which the subscriber to this affidavit
bears to said ditch or canal, or other work, is that of

(State whether owner, manager, superintendent, ete.)

and that he is authorize to make this affidavit in behalf of the in-
terests affected.

(Signature.)

NEBRASKA.

843

[Printed blanks containing theie fonna can be obtained from the State Engineer*

and stionld be uaed In practice.]

State of . . .
County of,

, — ss.

I hereby certify that the foregoing claim was signed in my pres-
ence and sworn to before me by this

day o£ ,189

[Seal]

Notary Public.

- NOTICE.— The above claim affi-
davit must be signed and sworn to by
some person closely related in interest
(or having authority, delegated or
otherwise, to make affidavit), to the
ditch, canal, or other work in ques-
tion ; preferably by the owner or presi-
dent, secretary or manager of the
company controlling same.

Too much care cannot be exercised
in the preparation of this affidavit, as
it is the foundation for all additional
testimojiy that will be taken (upon the
ground) by under Secretaries, to com-
plete the record from which the Board
will determine the rights and priority
of the claimant. Therefore, generali-
ties must be avoided, and all facts

required carefully determined and ac-
curately stated.

This affidavit must be filed at the
office of the State Board of Irrigation

within days from

189. .. Belay and neglect will jeopar-
dize the rights of claimants.

Proposed extensions and enlarge-
ments 6f canals, ditches, or other
works, not protected by new filings
made previously to April 4'th, 1895,
must not be included in the above
claim. Individuals or corporations,
desiring to make such extensions or
enlargements, must make application
for a permit from the State Board,
as provided by the Statute now in
force.

(Endorsed : — ) Claim, No. Priority, No Division

No District, No Claim for the Waters of the State

of Nebraska.

State of Nebraska,

OflSce State Board of Irrigation, — ss.

This instrument was filed for record at o'clock,

noon, on the day of 189 and duly recorded in

Book of the Record of Claims for Appropriations on Page

State Engineer, Secretary.

844 FORMS.

[Printed bUolu eontainlnc theM* forms can be obtained from the State BbcIdmi,

* and ahoold be need in praetiea.]

The blank following is sent out when the time given for the completion of

the work under the application has expired.

Application No

Proof of Appropriation of the Waters of the State of Nebraska.

Prom Div. No

1. Q. State your name.

2. Q. PostofSce address.

3. Q. Are you the original appropriator under Application

No 1

4. Q. If not the original appropriator. state nature of your

interest in the works constructed under said appropria-
tion, and when said interest was acquired.
A :

5. Q. When was the work of excavation or construction begun?
A

6. Q. When was the work completed!

A ,.-.

7. Q. What are the dimensions of the ditch (or other dis-

tributing works) built under this appropriation?
A ,

8. Q: If for irrigation, give the location and acreage irrigated

the first year, and acreage irrigated each subsequent

year, to the present. If for power, describe the plant.

A....*

9. Q. What crops were grown on this land in ?

Give estimated acreage of each.

10. Q. If for irrigation, give legal subdivisions of land, and the

acreage in each subdivision to which water was actually

and usefuUy applied on or before

If for power, give amount of water required to operate

plant, and use made of the power.

11. Q. If any of the lands named above are owned by' otht-r

parties, describe the tracts, and state the nature of their

right in the canal.
A ; :

NEBRASKA.

845

(Printed blanks contalninc theM forms esn be obtained from the State Engineer,

and should be need in practice.]

12. Q. If any of the lands have been watered since

that were not watered prior to that date, describe them,
giving legal subdivisions and acreage watered.
A....

13. Q. During what months is water beneficially nsedt

14. Q. Give the amount of your interest in the construction of

ditch and laterals.
A :

15. Q. Does the map which accompanies this proof show cor-

rectly the area of land to which water was actually and
usefully applied prior to

16. Q. Have you had sufficient water each year since the use

under your appropriation began 1
A

17. Q. If not, state the years of scarcity, the months when the

supply was insufficient, and the reasons of such scarcity.

REMARKS:

County,

State of Nebraska,

I, , being first duly sworn,

do depose and say that I have read the above and foregoing Proof
of Appropriation of Water; that I know the contents thereof, and
that the facts therein stated are true.

In witness whereof, I have hereunto set my hand this day

of 190

State of Nebraska,
Couiity,

I hereby certify that the foregoing Proof of Appropriation was

signed in my presence, and sworn to before me by ,

this day of , 190

NOTICE.— This proof of Appro-
priation must be signed and sworn to
by some person closely related in in-
terest (or having authority, delegated
or otherwise, to make affidavit) to the
ditch, canal, or other work in ques-
tion ; preferably by the owner or presi-
dent, secretary or manager of the
Company controlling same.

Notary Public.

This Proof must be filed at the
office of the State Board of Irrigation

within days from

190 . . . Delay and neglect will jeopar-
dize the rights of appropriators.
STATE BOABD OF lERIGATION,
ADNA DOBSON,
State Engineer, Secretary.

846 FOBMS.

[Printed blanks containing tlLeie forms can be obtained from the State Enslaes

and should be>nsed in practice.]

(Endorsed: — ) Application No Division No Distrifr

No Proof of Appropriation of the Waters of the State of

Nebraska. Prom. Name of Appropriator.

Piled in the oflSee of the State Board of Irri-
gation, this day of , 190 ]

State Engineer, Secretary.

The following certificate is issued after the proof is made on the preced-
ing form and the Board of Irrigation is satisfied that the law has been eoD-
plied with.

United States of America.

State of Nebraska.

Certificate No Division No

Office of State Board of Irrigation.
Oertiflcate of Appropriation of Water.

This is to certify that. of

State of , ha. . appropriated water from

to be used through the for

and that the State Board of Irrigation under the provisions of
Art. 2, of the Irrigation Law of the State of Nebraska, has deter-
mined and tetablished the priority and amount of the said appro-
priation, as follows :

The Priority of the appropriation dates from

the priority for the water-shed is No , and the priority for the

stream is No

The Amount of the appropriation is cubic feet per

second ; the amount of prior appropriation from the water-shed is
cubic feet per second, and the amount of prior ap-
propriation from the stream is cubic feet per second.

The lands to be irrigated are

The right to water herein confirmed is restricted to the irriga-
tion of the above described land.

The amount of the appropriation shall not exceed the amount
herein stated ; neither shall it exceed the capacity of said ditch or
canal, nor the least amount of water that experience may here-
after indicate as necessary for the production of crops in the ex-
ercise of good huisbandry; and, further, said appropriation is
limited to one-seventieth (1-70) of a cubic foot per second of time
for each acre of the above described land to which water is actually
and usefully applied for irrigation.

NEBRASKA. 847

[Printed blanks containing these forms can 1>e obtained from the State Engineer,

and should be used in practice.]

I, , President of the State

Board of Irrigation of the State of Nebraska, have hereunto set
my hand this day of

President.

Attest :

Secretary.

(Endorsed: — ) Certificate No Division No State of

Nebraska, Office State Bd. Irr. — ss. Becorded in Book. . . .of the

Becord of Certificates of Appropriation on page

State Engineer, Secretary. State of Nebraska,

County, — ss. Filed for record this day of ,

19 , and duly recorded in Book of the Becord of Certifi-
cates of Appropriation on page , County Clerk.

848 FORMS.

[FrlBtod blanks oontalnlng tlieM foxmi can be obtaiiMd froa th* State TThjIimi.

and ibonld be UMd In practice.]

NEVADA.

(As in force February 15, 1908.)

Application for Permit
To Appropriate the Public Waters of the State of Nevada.

1. Date of Receipt of Application

2. Name of Applicant

PoBtoflSce Address : P. O

County

I. If applicant is a corporation, give

(a) Date and place of corporation

(b) The amount of capital stock

(d) The names and addresses of Directors

3. The quantity of water claimed is cubic feet per

second.

4. Source of water supply

5. Location of point of diversion

6. To be used for:

I. Irrigation and domestic use :

(a) Number of acres to be irrigated. acres.

(b) In the following legal subdivisions

(A list of lands to be irrigated may be appended ass
part of this application.)

II. Mining, power, manufacturing or transportation purposes:

(a) To be uised for •

(b) Amount of power to be generated hoise

power.

(d) If water is to be returned to stream ("y®"" ^^

''no")

(e) If "yes" at what point

7. Estimated cost of works

NEVADA. 849

[PrlnleA blanks containlnc theie fonnB csn be obtained from the State Engineer,

and shonld be need in inraetiee.]

8. Description of works for diversion :

I. Kinds of works (reservoir, dam, ditch, flume, pipes or
otherwise)

II. Dimensions of workB :

(a) Height of dam, feet ; length of dam at

top, feet; length of dam at bottom,

feet ; material used in CQnstruction

(wood, earth, stone or concrete)

(b) Capacity of reservoir acre-feet.

feet.

(d) Ditch (flume or pipe) — ^width at bottom,

feet; width at water line, feet; depth

of water, feet. Average grade per

mile is feet. Length of ditch is

miles, and it crosses the following quarter sections :

to , which is the point of

intended use.

Remarks.

(This space not to be written in by applicants.)

A Plat showing line of ditch, etc., accompanies this application, as shown
on page 909 below.

APPROVAL OF STATE ENGINEER.

The number of this permit is

Date of receipt of first application. , 190. . . .

Return to applicant for correction , 190. . . .

Corrected application received , 190. . . .

Publication of notice completed , 190. . . .

Recorded in Book , page

Approved , 190

This is to certify that I have examined the within application
for a permit to appropriate the public waters of the State of
Nevada, and hereby grant the same, subject to the following lim-
itations and conditions :

The amount of water to be appropriated not more than

cubic feet per second.

The construction of the within described works to be commenced
not later than

One-fifth of the work above specified to be completed on or be-
fore

The whole of said work to be completed on or before

Wftter Rights — 64

850 FORMS.

[Prlntod blMiln eonUlnliig th«M forms ean be obUlned from the State BogiBMr,

•ad dioiild be need in praetlee.]

The time for the proof of beneficial use of water appropriated

in accordance herewith, to extend to

Witness my hand this day of , 190

State Engineer.

(Endorsed : — ) Permit No Quantity appropriated

Prom. For Location of point of di-
version, Section , Township , Range Name

P. O. Address Application received

Approved Recorded in Book

Page Pinal proof of beneficial use of water appropriated in

accordance with this permit rendered

Application No

Notice of Application for Permission to Appropriate the Public

Waters of the State of Nevada.

Notice is hereby given that on the day of ,

190 , in accordance with Section 25, Chapter XVIII, of the

Statutes of 1907, one of , County of

and State of made application to the

State Engineer of Nevada for permission to appropriate the public
waters of the State of Nevada. Such appropriation is to be made

from

at points

by means of

and cubic feet per second is to be conveyed to points

by means of .•

and there used

Water to be returned to stream at

Date of first publication

Date of last publication

Signed :

State Engineer.

Proof of the publication of this notice muBt be filed with the State En-
gineer within 90 days from the above date, or the application will be de-
clared void.

NEVADA. 851

[Printed blanks containing theM forms can be obtained from tbe State Engineer,

and should be used in practice.]

NOTE. — The State Engineer of Nevada wrote under date of August 30,
1 905 : * ' The law eoncerning new appropriations of water was passed by the last
legislature, and 1 have not yet adopted forms for the proof of these ap-
propriations.'' The following form has since been adopted:

Under Permit No

Proof of Application of Water to Beneficial Use.

Deposition of Holder.

Question 1. State your name, occupation, and postofBce address.

Answer :

Question 2. If acting in behalf of a corporation, state its name,
place of business, and your authority for applying in its behalf.

Answer :

Question 3. State number and date of permit, source of water
supply, and location of point of diversion. Answer :

Question 4. Give name of canal or other works by which water
is conducted to its place of use, and state the amount such works
are capable of carrying. Answer :

Question 5. State for what purpose water is used, and at what
point. (If for irrigation, name each subdivision in which used, and
number of acres in each subdivision that have actually been irri-
gated with said water. Answer :

Question 6. What is the minimum required for the use specified
above? Answer:

Question 7. If you are not the person or representative of the
corporation to whom the above-mentioned permit was originally
issued, please state how ownership was acquired by present holder.

Answer :

Question 8. State when, how, in what amount, and to what ex-
tent the water diverted under the above-mentioned permit has been

used. Answer :

Signed :

I hereby certify that the foregoing testimony was read to the
above subscriber before its signing, and I believe him to be the
person he represents himself to be, and that said testimony was

subscribed and sworn to before me at my office in ,

County of , State of , on this day

of , A. D. 190.....'

852 FORMS.

[Printed blanks containing thata forms can bo obtainod from tlio State TBngtnwfr,

and should bo nsod in praetieo.]

I have examined the within testimony and the within described
premises and find the holder's claim to his use of witer to be in
accordance with the facts to the best of my knowledge and belief.

State Engineer.

(Endorsed : — ) Under Permit No Proof of Application of

Water to Beneficial Purposes. Deposition of Holder. Amount of

water Source County

Purpose Place of use Date of prioritj

Received and filed

(The following form is used in establishing the priority of existing rights.)

The State of Nevada.
Proof of the Appropriation of Water.

State your name

1. Q. Postoffice. A :

2. Q. State the use to which the water has been applied.
A

3. Q. State the means o^ diversion employed. A...'.

4. Q. If through a ditch state its name. A

5. Q. (a) State date of survey of the ditch or other dis-
tributing works through which the water claimed is diverted, (b :
The date when the construction of such ditch was begun and when
completed. A. (a) ; (b)

6. Q. If any enlargements were made state the date when
begun and the date when completed. A •.

7. Q. State dimensions of the ditch as o'riginally constructed,
and as enlarged. A

8. Q. State the name of person, association of persons or cor-
porations who built the ditch or canal, and the name or names
of its present owners. A

9. Q. State the nature of your title to the land for which an
appropriation is claimed, and if not owned by you give tiiie name
of the owner and the nature of the possessory right which you
exercise. A

10. Q. State the year when water was first used for irrigation
or other beneficial purposes, and by whom. If for irrigation, give
the number of acres watered the first year, with the legal subdi-
visions on which the water was used, and as near as may be the
acres irrigated in each legal subdivision. A

NEVADA. 853

[Printed liUaks containlnc these fonns can be obtained from tbe State Engineer,

and ahonld be need In praetlee.]

11. Q. State the number of acres watered each subsequent
year, and give the legal subdivisions on which the water was used,
and as near as may be the acres irrigated in each legal subdivision.
A

12. Q. If water is claimed for irrigation, give the legal sub-
divisions of land owned or controlled by you for which an appro-
priation is claimed. A

13. Q. State the acreage said ditch is capable of watering,
give the legal subdivisions of land which it can be made to irrigate,
and state who owns said land. A »

14. Q. State the character of the soil and the kind* of crops
cultivated. A

15. Q. Are you an owner in said ditch ? If so, state your pro-
portionate interest therein. A

16. Q. The plat prepared by the State Engineer is hereby ac-
cepted as showing correctly the location of the Ditch

and the land which can be irrigated therefrom. A

17. Q. When does your irrigation season begin and when does
it end ? A

18. Q. If water is used for other purposes than irrigation,
state the nature of such use, the time when such use began, and
how much water is required for such purpose. A

19. Q. During what months is the water used ? A

20. Q. Have you had sufiEtcient water each year since the use
for which an appropriation is claimed began? If not, state the
years of scarcity, the months when the supply was insufficient, and
the reason of such scarcity. A

Signed :

, Nevada, , 190

Sworn to and subscribed before me at , this

day of , 190

Notary Public.
Remarks :

(Endorsed: — ) Proof of Appropriation. Date of Appropriation

Priorities : General Stream

Name of Stream Tributary of . . .- Name

of Claimant Filed in this office this day of

, 190 , State Engineer.

854 FORMS.

[Prlnfeed blanks eontainiiig th«M fonns can ba obtained from the State EnginMr,

and ihoold bo nied in practice.]

The State of Nevada.
Certificate of Appropriation of Water.

Cebtifigate Record , Page

Whereas, has preBented to the State En^neer

of the State of Nevada proof of appropriation of water from

I through the Ditch for irrigation of

the lands herein described, lying and being in

County, Nevada, and for

Now Know Ye, That the State Engineer, under the provirioDs
of Section 13, Chapter 4, Statutes of Nevada, 1903, has determined
the priority and amount of such appropriation as follows:

Name of Appropriator. . .* ^ . . . ; Postoffice Address ,

Nevada. General Priority Number on main stream ;

Priority Number on Amount of Appropriation,

acre-feet per year ; Amount of prior appropriations,

acre-feet per year; Date of Appropriation ;

Description of land to be irrigated, and for which this appropria-
tion is determined :

The ri^t to water hereby determined is limited to irrigation

and the use is restricted to the place where acquired

and to the purpose for which acquired; rights for irrigation not
to exceed three acre-feet per year for each acre of land for which
appropriation is herein determined

In Testimony Whereof, I, , State Engineer,

have hereunto set my hand this day of , A. D.

190

State Engineer.

NEW MEXICO.

855

[PxiBfead blanks confining tlMia forms can bo obUlaod from tbe Stato Bngl|ioor»

and shonld bo nsod in praetieo.]

NEW MEXICO.

(As in force February 18, 1908.)

* * An appropriation of water in this
Territory is obtained through the
offiee of the Territorial Engineer by
making application to him for a per-
mit to appropriate. The Engineer, if
there is unappropriated water avail-
able, will order the applicant to pub-
lish notice of said application in some
newspaper in general circulation in
said stream system and from the evi-
dences thereof, and from the records
will decide, whether said application
should be granted or not.

' ' In approving an application, which
then becomes a permit to appropriate,
the Engineer will specify how long
the applicant will have to commence
his construction work and length of
time to complete same, also length of
time the applicant can have to put the
water to a beneficial use. At the time
specified for the construction work to
be completed, the Engineer will ex-
amine the work and if satisfactory
win issue his certificate of coiistruc-

tion, also, at the time stated for the
application of the water to a bene-
ficial use, the Engineer makes an-
other examination and issues his li-
cense to appropriate up to the amount
the applicant has beneficially used,
provided, same is within the limit
asked for in his application. •

"Adjudication of water rights is
obtained by bringing suit for adjudi-
cation of same by private parties or
by the Territory, making all other
parties, who may have rights on the
stream system party to said suit.

"The court then orders the Tend-
torial Engineer to make a hydro-
graphic survey of said stream system
and report same to the court. This is
done for the purpose of advising the
court of the true condition, that he
may adjudicate same, justly. ' ' From
a letter to the author from Vernon L.
Sullivan, Territorial Engineer, under
date of February 18, 1908.

Bead Inatmctloiis Before Filling the Blank.

Maps Must Accompany This Application.

Application for Permit.

To Appropriate the Public Waters of the Territory of New Mexico.

1. Date of receipt of application

2. Name of applicant ; postofSce address

, County , Territory

3. If applicant is a corporation give :

(a) Date and place of organization of corporation

(b) The amount of capital stock

(d) The names and addresses of directors

856 FORMS.

[Printed bluiki coiitaliil]i|( tlieM fonu can be obtained fton the State BBglBw.

and ilioiild be naed in pcaetloe.]

4. Quantity of water claim sec ft

(a) By diversion sec ft

(b) Storage of flood waters ac ft

(c)

5. Periods of annual use sec. ft. from

to sec. ft. from to

6. Source of water supply (a) Name (b) Wlieh

is a tributary of

7. Location of point of diversion Section

Township Range

(If on unsurveyed land describe fully.)

8. To be used for

Irrigation and Domestic Use :

(a) Number of acres to be irrigated acres ; (b) In

the following legal subdivisions

Manufacturing, Mining and Power Purposes :

(a) To be used for (b) Amount of ix)wer to be

'generated horse-power, (c) At what point

(d) At what point water will be returned

9. Estimate cost of work $

10. Description of work for diversion

• Dimensions of Storage Works :

(a) Height of dam feet; length of dam at top

feet; length of dam at bottom ft;

material used in construction (wood, earth, stone or concrete^
{b) Capacity of reservoir ac ft.

Dimensions of Canal or Ditch:

(a) Size of head-gate width ft ; height

ft; (b) Canal is ; width at bottom ft;

width at water line ft; depth ft. Average

grade per 1000 ft is ft.

Length of main canal is miles and across the follow-
ing sections :

11. Other reservoirs and canals, name or number, location and
size and capacity of each

12. Reference

(Give name of bank and merchant reference)

I, , do solemnly swear that the statements and

answers to questions in this application are true to the best of my
knowledge.

Claimant

NEW MEXICO.

857

[Printed blanks containing tbeia forms can bo obtainod from tbo Stato Enginoor,

and should bo nsod in practieo.]

Subscribed and sworn to before me this day of ,

190

Notary Public.

(Approved by the Board of Water Commissioners, May 7, 1907.) Pee of
five dollars and maps required by law to accompany this application.

APPROVAL OP TERRITORIAL ENGINEER.

The number of this permit is

Date of receipt of first application , 190. . . .

Return of application for correction 190

Corrected application received , 190

Publication of notice completed and proof filed ,

190

Application recorded in Book , Page

Approved , 190

This is to' certify that I have examined the within application
for a permit to appropriate the public waters of the Territory of
New Mexico, and hereby approve the same.

The Amount of Water to be Appropriated:

(a) By diversion cubic feet per second; (b) By

storage acre ft. ; (c) Remarks ! . . .

(How are works to be usedf)

The construction of the within described works to be commenced

not later than

One-fifth of the work above specified to be completed on or before

The whole of said work to be completed on or before

The time for application to beneficial use shall not be later than

Witness my hand this day. of , 190

Territorial Engineer.

INSTRUCTIONS AND EXPLANATIONS POR PILLING OUT APPLI-
CATION BLANKS.

Sec. 1. Do not fill in section one.
This blank is left for the Engineer.

Sec. 2. Plainly fill in the name of
the applicant and address.

See. 3. If applicant is a corpora-
tion, company or firm, plainly fill out
blanks under section three. Give
date of filing certificate of incorpora-
tion in office of Secretary of Territory
of New Mexico.

Sec. 4. Quantity of water claimed
should be the total amount in eu. ft.
per see. to be beneficially used during
the average periods of annual use.
This amount cannot be in excess of
1 see. ft. for 70 acres. One. see. ft.
running eight months would eover 70
acres nearly 7 ft. deep. The amount
of water sufficient to cover the ground
2}<2 ft. deep is generally considered

858 .

POBMS.

plenty if beneficially used, therefore
one sec. ft. should be sufficient to irri-
gate 100 to 200 acres. If all of this
water is purely diversion then the
same amount should be filled in the
blank space after (a), also state
under (c) how the works are to be
used.

If the waters asked for is flood
water or unappropriated winter flow,
etc., and has to be stored, then you
should fill in under (b) the total ca-
pacity of the storage reservoirs, also
under (c) state how many times the
reservoirs will be fiUed during the
year and at what times. (For ex-
ample: Reservoirs are to be filled
twice during the year once from the
winter flow of the river and once from
floods and summer rains.) The
amount of one sec. ft. of water run-
ning for 24 hours would equal about
1.98 ac. ft., therefore one sec. ft.
running eight months would equal
about 475 ac. ft. in this way you can
calculate how much storage water
would equal a certain number of sec.
ft. during an irrigation season of
eight months, and place that amount
as the quantity of water claimed.
Then also under (c) state the maxi-
mum amount of water in cu. ft. per
sec. you intend to divert when the
water is diverted from the source of
water supply to the reservoir or if
the reservoir is formed by a dam
across the water supply or stream then
the maximum amount of water in cu.
ft. per sec. yon intend to store should
be stated, which could be the maxi-
mum flow of unappropriated water in
the water supply up to the capacity
of your appropriation.

If the water claimed in both di-
version (or water used without stor-
age) and storage water, then fill out
all blanks according to instructions.
The quantity of water claimed would
then be the total of the water claimed
under storage (as calculated by the
above instructions) and water claimed
by diversion.

Sec. 5. Is the place for the periods
of annual usef Irrigation period
averages in this Territory from some
time in March to sometime in October.
Then in filling out sec. ft. from, say
March 31st to October l5th. In
some cases where there is a little

water used beneficially during the
winter months you would fill out in
the second place for periods of an-
nual use the number of sec ft. from,
say October 15th to March SIeL Be-
member these periods are for the use
and not the periods that yon are to
store water in. a storage proposition.

Sec. 6. Pill out plainly each blank
under this section.

Sec. 7. The point of diversion in a
purely diversion proposition is the
point where the canal takes the water
out of the river, arroya or water
supply and is also the Same in a stor-
age proposition where the water is
diverted by canal, to the reservoir but
where the reservoir is formed by a
storage dam across the water supply
then the point of diversion is at the
outlet of said reservoir.

If on unsurveyed' lands describe the
above location fully.

Sec. 8. State all the purposes for
which the water is to be* used. If for
irrigation state under (a) the total
numBer of acres to be irrigated, under
(b) the location of land to be irri-
gated, if for mining, or power pur-
poses fill out blanks for that pur-
pose. Where same water is to be
used for several purposes, fill out all
blanks referring to the different pur-
poses.

Sec. 9. State estimated coat of
work.

Sec. 10. Describe works of diver-
sion fully.

If the proposition has a diverting;
canal which diverts into a reservoir
and from there into a distributing
canal; fully describe diverting canal
in first blank in section 10, giving
section, grade and capacity of divert-
ing canal; dimension of headgate and
if there is a little diversion dam de-
scribe that also, giving maximum
height and length and material used
in construction.

Under dimension of storage works,
if your proposition has a stom^ res-
ervoir, fill out blanks left for such
purpose. H there is more than one
reservoir give the required date for
reservoir No. 2 under Sec 11.

Under dimensions of canal or ditch
give the dimensions of your main dis-
tributing canal. If you have more

mm - -\

NEW MEXICO.

859

CPrlnted blanks eontalnlog tlMia forms ean be obtained from tlie State Engineer,

and shonld be need in praetiee.]

than one main distributing canal put
the required data of Canal No. 2
also under Sec. 11.

Sec. 11. Is for other descriptions
necessary to define the application
and for remarks. Sec. 12 is to give a
reference of some bank and merchant
as to your ability to complete the
works described in your application.

Claimant must sign affidavit to
above statements before a l^otary or

other officer qualified to administer
oaths.

If the application is to enlarge an
old proposition, fill out the blanks ac-
cording to the enlarged project, then
state under Sec. 11 give the required
data necessary to define your old
works.

Do not write in blanks left for the
approval of the Engineer.

(Endorsed: — ) Permit No Application for Permit to Ap-
propriate the Public Waters of the Territory of New Mexico.
Name P. O. Address Quantity appro-
priated From For

Location of Point of Division. Section , Township ,

Range Application received Approved

Recorded in book , Page Final appli-
cation to beneficial ixse of water appropriation in accordance with
this permit.

Notice of Application for Permit.

Santa Fe, New Mexico, , 190

Dear Sib : —

You are hereby instructed to publish the following notice in

some newspaper of general circulation in the said ,

stream system, once a week for four consecutive weeks, and file

proof of said publication with the Territorial Engineer before

of , 190 Name of paper ...

Territorial Engineer.

Notice is hereby given that on the day of ,

190 in accordance with Section 26, Irrigation Law of 1907,

of County of ,

Territory of New Mexico, made application to the Territorial En-
gineer of New Mexico for a permit to appropriate from the Public
Waters of the Territory of New Mexico.

Such appropriation is to be made from at

points

By means of '.

and cu. ft. per sec. or ac. ft., is to be

conveyed to points

By means of

and there used for

860 FORMS.

[Printed blanks eontainlnc th«ia forms can be obtained from tbe State BngiBMi,

and should be nsed in praetiee.]

The Territorial Engineer will take this application up for con-
sideration on the day of ,19 , and all

persons who may oppose the granting of the above application must
file their objections with the Territorial Engineer on or before
that date.

Territorial Engineer.

Territory of New Mexico.
Oertiflcate of Oonstruction.

Certificate No.- Refers to permit No

This is to certify, That I have inspected the works known as

, which are located in Sec. , Twp ,

Rng., of the Territory of New Mexico and find that they

have been properly and safely constructed and are in satisfactory
condition.

The capacity of said works I find to be as follows :

Canal sec. ft

Reservoir acre feet .•.

Said works as constructed differ from the original plans as fol-
lows : .^

Which will limit the water right from the original application as
follows :

Witness my hand this day of A. D. 19

Territorial Engineer.

(Endorsed: — ) No Refers to Permit No Certificate

of Construction. Name Address

Recorded in Book Page Ter-
ritorial Engineer's QflBce.

Territory of New Mexico.
License to Appropriate Water.

Recorded in Book No , Page Refers to permit No

Whereas, has actually made application to

beneficial use of sec. ft. of water through

under Permit No for irrigation of the following described

lands being in County of , New Mex-
ico, to-wit :

NEW MEXICO. 861

[Prtnt«d blanks eontainlng these forms can be obtained from the State Engineer,

and should be nsed in practice.]

If for other purposes state for what :

Now, therefore, I, , Territorial Engineer un-
der the provisions of the Irrigation Law of 1907, issue this li-
cense to of County of ,

New Mexico, to use the same for the above stated purposes and
can be changed only as provided by law.

Date of application for permit to appropriation was

day of ,19

In testimony whereof, I, , Territorial En-
gineer of New Mexicb have hereunto set my hand this day

of ..., A. D. 19

Territorial Engineer.

(Endorsed: — ) No Refers to Permit No License to

Appropriate. Name . . ^ '. . . Address Re-
corded in Book Page , Territorial En-
gineer's Office.

862 FOBMS.

[Pzintad blanks containing tlMia forms can bo obtainod from Um Btmtm

and should bo nsod la prmetlco.)

NORTH DAKOTA.

(As in force February 20, 1908.)
No

Water Division No District No

[Blanks to be filled by the State Engineer.]

Application for a Pennit
To Appropriate Water Within the State of North Dakota.

[NOTE. — Draw a line through items not applicable.]

Iv Name of applicant

PostofSce address , County , State

I. If a corporation :

(a) Name of same ,

(b) Date and place of incorporation

(d) Amount paid in

(e) Names and addresses of directors:

[NOTE. — A certified copy of articles of incorporation must accompany tkc
application.]

II. Method of accompli3hing the work and financial resources
of the applicant :

(a) Method of accomplishing the work. (Whether

by contract, employment of others; or by di-
rect labor)

(b) Cash on hand, $

(d) Bonds to be issued, $

(e) Other resources, $

2. Name of diversion works

3. Quantity of water claimed cubic feet per second.

4. Source of water supply'

5. Location of point of diversion

on bank.

(Right or left bank looking down stream.)

6. Annual period during which water is to be used

NORTH DAKOTA. 863

[Printed blanks containing tbaia fonns ean be obtained from tbe State Bnglneer,

and ahonld be nted In praetlee.]

7. To be used for :

I. Irrigationor domestic use:

(a) Number of acres to be irrigated acres

(b) Legal subdivisions to be irrigated i

[NOT£. — A list of lands to be irrigated, giving each subdivision and
fraction with acreage, thereof, should be written here, or may be appended
as a part of this application. Same must also be shown on accompanying
map.]

II. Mining, power, manufacturing, transportation, or other
purposes :

(a) Nature of use

(b) Amount of power to be generated

horse-power.

(d) Method of devel6ping power

(e) Point where water will be returned to stream

8. Estimated cost of works :

(a) Headgates, $

(b) Pumping plant, $

(d) Canal — earth, $ rock, $

(e) Other structures $ Total,

9. Description of diversion works :

I. Nature of works: (Reservoir, dam, ditch, flume, pump-
ing plant, etc.)

II. Dimensions of works :

(a) Dam : Height feet ; length at bottom

feet ; length at top feet ; thickness at

bottom feet ; thickness at top

feet; slope of front (water) face ;

slope back face ; material used in con-
struction

(b) Reservoir: Capacity when filled acre-feet.

Surface area at high-water mark acres.

Depth at Surface Area at Each Feet of Capacity —

Outlet — ^Feet Depth at Outlet — Acres Acre-feet

864 FORMS.

[PriBtad liUnks eoaUinlng tlieM forms can be obtained from t&e 8Ule Kmlmw,

and ilionld be need in praetiee.]

Material

(d) Canal: Total length miles.

Location Below Width at Water

Headgate Depth Bottom Width Line Grade per Mile

At mile feet feet feet feet.

At mile. ..:... feet feet feet feet.

[Give dimensions where reductions in size are made.]

10. Time required for completion of work years.

11. Time required for completion application of water to the

proposed beneficial use years.

12. Choice of newspaper for publication of notice of intention to

appropriate

State of North Dakota,
County of , — ss.

I, , being first duly sworn on my oath, depose

and say : That my relation to the above described undertaking is
that of [owner, manager or engineer], that I have read the above
and foregoing statement, and examined the map accompanying the
same, and that I^know of my own personal knowledge that the mat-
ters therein stated and shown are true.

Signed

Subscribed and sworn to before me this day of

190

Notary Public (or other qualified officer).
Remarks (by State Engineer) :

State of North Dakota,
County of

Bismarck, N. Dak., 190

This is to certify that the foregoing application was received at

this office at p'clock M., upon the day of

, 190 , and that after examination it was

State Engineer.

By ,

Deputy.

NORTH DAKOTA. 865

[Printed blaakf conteliiliig theie forms cftn Im obtelned from tko State Sngineer,

and ihonld bo nted In practice.]

Number of Permit

Date of first receipt of application 190.

Date of return to applicant for correction 190 .

Date of receipt of corrected application 190.

Date from which application may claim right 190.

Approved 190 Recorded in Book . . .

Page

This is to certify that I have examined the foregoing application
for a permit to appropriate water of the State of North Dakota,
and I hereby grant the same as stated herein, subject, however, to
the following limitations and conditions:

1st. The equivalent of at least one-fifth of the work above
specified is to be completed on or before , 19

2d. The whole of said work is to be completed on or before

3d. The limit of time for proof of beneficial use of water ap-
propriated in accordance herewith is , 19. . . .

4fh. The water appropriated shall be used for the purpose of
• ........••..•■•■••■■•■••...■.•.••.....■••••••.■. ... . • • ....

5th. The prior right of all persons who, by compliance with the
laws of the State of North Dakota, have acquired a right to the use
of water must not be injuriously aflPected by this appropriation.

6th. The amount of appropriation herein granted shall not ex-
ceed cubic feet of water per second of time ; neither shall

it exceed the capacity of the above described system of diversion
works, nor the least amount of water that experience may here-
after indicate as necessary for the production of crops in the ex-
ercise of the best husbandry,' and further, said appropriation must
be limited to not more than one-eightieth (1-80) of one cubic foot
of water per second of time for each acre of land to which water is

actually and beneficially applied on or before. ,

19 ; said water to be used during the following described annual

periods : »

Witness my hand this day of , 190. . . .

State Engineer.
Deputy.

(Endorsed : — ) No Division No District No

Permit to appropriate water from county. North

Dakota. Name of applicant Name of diversion

works Date of first receipt at office of State En-
gineer , 190 Returned to applicant for correc-

Water Bights — 65

S66 FORMS.

[Printed blanks containing tliaia forms ean be obtained from the Mate

and should be nsed la praetloe.]

tion , 190.... Corrected application reeeiTed

, 190 Date of water right , 190. ...

Recorded in Book Page .... One-fifth of work to be com-
pleted f 19 Whole work to be oompleted

, 19 Final proof of nse of water

19 Approved , 190

State Engineer. By , Dcpnty.

iso

Water Division No District No

[Blanks to be filled by the State Engineer.]

Application for a Permit— Enlargement.

[NOTE. — ^Draw lines through items not applicable. Where not other-
wise stated all items refer to the proposed enlargement or extension.]

1. Name of applicant ^

Poetoffice address ' , County , State

. I. If a corporation :

(a) Name of same

(b) Date and place of incorporation

(d) Amount paid in -

(e) Names and addresses of directors :

[NOTE. — A certified eopj of articles of incorporation must aceompanj
the application.]

II. Method of accomplishing the work and financial resonrees
of the applicant :

(a) Method 'of accomplishing the work. (Wheth^

by contract, employment of others, or by per-
sonal labor)

(b) Cash on hand, $

(d) Bonds to be issued, $

(e) Other resources, $ ^ , . .

2. Name of existing diversion works Permit No.

Name of enlargement or extension

3. Quantity of water claimed by enlargement or extension

cubic feet pet second.

4. Source of water supply

5. Location of point of commencement of extension

NORTH DAKOTA. 867

[Printed blanks containing theae fOrmi can ba obtainad from tlia fitata Bnglnaar,

and iboiild ba nia4 in inraetlea.]

6. Annual periods during which water is to be used

7. To be used for:

I. Irrigation or domestic use :

(a) Number of acres to be irrigated acres.

(b) Legal subdivisions to be irrigated

[NOTE. — A list of lands to be irrigated, giving eaeh snbdiTision and
fraction with acreage tberepf, should be written here, or may be appended
ns a part of this application. Same must also be shown on aeeompanying
map.]

II. Mining, power, manufacturing, transportation, or other
purposes:

(a) Nature of use ,

(b) Amount of power to be gehei;fited

horse-power.

(d) Method of developing power

(e) Point where water will be returned to stream. . . .

8. Estimated cost of works :

(a) Headgates, $.

(b) Pumping plant, $

(d) Canal— earth, $ rock, $

(e) Other structures $ Total,

9. Description of diversion works :

I. Nature of works: (Reservoir, dam, ditch, flume, pump-
ing plant, etc.) i

II. Dimensions of works :

(a) Dam : Height feet ; length at bottom

feet; length at top feet; thickness at

bottom feet ; thickness at top

feet; slope of front (water) face ;

slope of back face ; material used in

construction

(b) Reservoir: Capacity when filled acre-feet.

Surface area at high-water mark acres.

Depth at Surf ace Area at Each Feet of Capacity —

Outlet — ^Feet' Depth at Outlet — ^Aeres Acre-feet

X6€l • ■ • •

. . . feet.

X66l . • • •

... feet.

feet

. . . feet.

leet. . . .

... feet.

xeer . . . .

. . . feet.

868 FORMS.

[Pzintad bUnks conUlnlng these forme can be obtained from the State Bniineer.

and should be ased In practice.]

Material

(d) Canal : Total length miles.

Location Below Width at Water

Headgate Depth Bottom Width Line Grade per Mile

At mile feet feet

At mile. ...... feet feet

At mile feet feet

At mile -feet feet

At mile feet feet

[Give dimensions where reductions in size are made.]

10. Time required for completion of work years.

11. Time required for complete application of water to the pro-

posed beneficial use years.

12. Choice of newspaper for publication of notice of intention to

appropriate

State of North Dakota,
County of , — ss.

I, , being first duly sworn on my oath, depose

and say : That my relation to the above described undertaking is
that of [owner, manager or engineer] , that I have read the above
and foregoing statement, and examined the map accompanying the
same, and that I know of my own pel'sonal knowledge that the mat-
ters therein stated and shown are true.

Signed

Subscribed and sworn to before me this day of ,

190

Notary Public (or other qualified officer).
Remarks (by State Engineer) :

State of North Dakota,
County of

Bismarck, N. Dak., , 190

This is to certify that the foregoing application was received at

this office at o'clock M., upon the day of

, 190 , and that after examination it was

State Engineer.

Deputy.

NORTH DAKOTA. 869

[Printed blanks containing these forms can be obtained from the State Engineer,

and should be used In practice.]

Number of Permit

Date of first receipt of application 190. . . .

Date of return to applicant for correction 190

Date of receipt of corrected application 190

Date from which application may claim right 190

Approved 190 Recorded in Book Page

Ist. The equivalent of at least one-fifth of the work above
specified is to be completed on or before , 190

2d. The whole of said work is to be completed on or before

3d. The limit of time for proof of beneficial use of water ap-
propriated herewith is ,19

4th. The water appropriated shall be used for the purpose of .

5th. The prior right of all persons who, by compliance with
the laws of the State of North Dakota, have acquired a right to
the use of water must not be injuriously affected by this appro-
priation.

6th. The amount of appropriation herein granted shall not ex-
ceed cubic feet of water per second of time ; neither shall

it exceed the capacity of the above described system of diversion
works, nor the least amount of water that experience may here-
after indicate as necessary for the production of crops in the ex-
ercise of the best husbandry ; and further, said appropriation must
be limited to not more than one-eightieth (1-80) of* one cubic foot
of water per second of time for each acre of land to which water .

is actually and beneficially applied on or before ,

19 ; said water to be used during the following described an-
nual periods:

Witness my hand this day of , 190. . . .

State Engineer.

Deputy.

(Endorsed: — ) No Division No District No

Permit to appropriate water from county, North

Dakota. Name of applicant Name of diversion

works Date of first receipt at office of State of

Engineer , 190. . . . Returned to applicant for cor-

870 FORMS.

[PzlBted blanks containing ttoM fomi e*n be obtained from the Stata BaciBMr,

and abonld be need in practioe.]

rection , 190 Corrected application received

, 190 Date of water right , 190. . . .

Recorded in book Page One-fifth of work to be com-
pleted ,' 19 Whole work to be completed

,19 Pinal proof of use of water ,

19 Approved - . , 190

State Engineer. By , Deputy.

Acknowledgment of Beceipt of Application.

Bismarck, ,190 —

Your application dated 190 for permit to

appropriate water from throij^h the

together with a fee of $5.00 for the examina-
tion of same, the receipt of which is hereby acknowledged^ was le-
ceived this day and has been duly filed under the temporary num-
ber The application will be examined in regular cider

as soon as possible, after which you will be notified as to further
action on your part.

Very respectfully.

State Engineer.

Deputy.

Notice of Intention to Appropriate Water.

(First Publication , 190 )

Appropriation of Water.
, Office of the State Engineer,

Bismarck, N. D , 190 —

Notice is hereby given that whose postoffice

address is County, N. D., has made an appliea-

tion in accordance with the provisions of the irrigation laws of
North Dakota for a permit to appropriate for beneficial use

cubic feet of water per second of time from

. through the , the point of diversion of which is

to be located upon the bank of said stream in the

NOBTH DAKOTA. 871

t^xlntod bUnks contelnlng these fonns can be obtotned from the State Bnclneer,

and fhoald be need In pnetloe.]

^V4 of the % of section township range , .said

\^ater to be used for the purpose of upon the

This application will be taken up by the State Engineer at his
office at Bismarck for consideration and appropriate action upon

tlie day of 190 at 9 A. M., at which time all

persons who believe that the prior rights would be injuriously
affected, or that the allowance of the permit would be detrimental
to the public welfare, and also parties making the application, and
to be benefited, are notified to be present either by sworn affidavit
or in person for the purpose of presenting any relevant testimony.

State Engineer.

Proof of Publication.

State of North Dakota,
County of

being duly sworn, deposes and says that

the annexed printed copy of Notice of Intention to Appropriate

Water was taken from the , a newspaper which, during

the whole time of publication of said notice hereinafter stated, has

been and is printed and published in the of ,

County of. , and Stata of North Di&ota. That the said

notice was published in said newspaper op the following dates:

in each and every issue of the full number thereof, commencing on

the day of , 190 , and ending on the

day of , 190 , upon which days or times of pub-
lication aforesaid the newspaper was regularly published, and that

during the whole time of said publication he was the

printer and publisher of the said new^aper.

Subscribed and sworn to before me this day of.

A. D. 190

Notary Public ... .County, N. D.

MAPS. eomer, or if on unsurveyed lands to

1. The map of a ditch shaU ehow: »omeiiatnTal obj«5t bo that the eite

. / X m.xi • . -• j-x 1. **° he easily found. True courses are

(a) Title, giving name of ditch ^ y^ ^^^^ ^^^ magnetic variations be-

<>' «»^»1- ing also stoted.

(b) Location of headgate, by (e) Stream, and name thereof,
course and distance to a govemment from which water is diverted.

872

FOBMS.

(d) Boute and total length of
ditch or canal.

(e) Lands crossed with names of
owners thereof.

(f) Lands to be irrigated, with
names of owners thereof.

(g) Locations, with elevations
thereof, of bench marks at the head-
gate or other suitable points.

II. The map of the reservoir shall
show:

(a)
voir.

(b)
survey,

(c)

Title, giving name of reser-

Location of initial point of
as in case of canal.
The location of the dam, of
the high-water line, and contour lines
at appropriate intervals and both the
area within the high-water line and
the capacity of the reservoir when
filled to the high-water line.

(d) Stream, with name thereof,
from which reservoir derives its sup-
ply of water.

(e) Location of ditches to aod
from reservoir.

(f) Legal subdivision and owner-
ship thereof.

(g) Lands to be irrigated and
ownership thereof.

(h) A bench mark outside of res-
ervoir, this bench mark being refer-
enced to the high-water line and other
important elevations.

(i) The location of the outlet with
reference to a government comer, or,
if upon unsurveyed ground, to some
natural object, or to the initial point
of survey.

III. (a) Both ditch and reser
voir maps s^all have thereon a certifi-
cate of the engineer who made the
survey, substantially as follows:

State of North Dakota,
County of •. ., — ss.

I, , being duly sworn, upon my oath say, that I am

the engineer of the ; that the survey and map thereof

were made by me (or under my direction), and that such survey
is accurately represented upon this map ; and that I have read the
accompanying statement and know of my own knowledge that the
statements therein made are true.

Engin^V (or'suilveyor).

Subscribed and sworn to before me this day of

, 190

Notary Public' (or other qualified officer).

NOTE. — The State Engineer of in this State up to the present time.

North Dakota wrote in 1905 that he It is expected that the matter will be

has not yet outlined the method to be taken up this winter,
used in the transfer of water righta In February, 1908, the State En-

to use on different land, nor adopted gineer writes that the forms remain

certificates of completion of works, as ae in 1905.
there has been no need of such forms ^

OREGON. 873

[Printed bUnki containing these forme can be obtained from the State Engineer,

and should be need In praetlee.]

OBEOON.

(As in force February 28, 1908.)

Notice of Appropriation of Water.

Notice is Hereby Given That of

(Name of appropriator)

P. 0., County of . * State of , hereby ap-
propriates cubic feet per second of time of the

(Amount)

ivater of to be diverted from the

(Name of creek or river) (Bight or left looking down stream)

bank of said stream at a i)oint which bears from

(Give course and distance from nearest corner)

the comer of Section , Township

''Description of initial point)

, Bange , W. M., by means of a

^(No. North or South) (No. East or West)

which ditch or canal extends in a

(Canal/ pipe, pump, wheel, etc.) (General course of ditch)

direction from said point of diversion, and will be constructed

feet wide at the bottom, feet wide at

the water surface, and to carry feet depth of water,

with a grade of

The name of the said proposed ditch or canal is

the owner thereof being

of the County of ,, State of and the wa-
ters hereby appropriated are to be used for

• • J

(Domestic use, irrigation or power development, mining, etc.)

The number of reservoirs, if any, to be used in connection with

this appropriation is . ; located in

If for irrigation purposes, the water will be used on lands in

Section , Township , Bange

, W. M. If for power purposes, the point at which

the water is to be returned to the stream is Section

, Township , Bange , W.

M., and the available fall is feet.

Dated at State of this day

of 190

Appropriator.

874 FOBMS.

[PzlBted bUnks containing tlMM foxmi can be olitain^d from tlM State

and ihoQld be need In pxacfeiee.]

Posted this day of 190...., at

o'clock M.

(Name of person posting this notice)

Witnesses to posting:

State of Oregon,
County of , — ss.

I, being first dnly sworn, on oath depose and sav

that on the day of 190 , at o'doek

M., I posted a notice at the proposed point of diversion, as

herein described, by

(Describe manner of posting notice)

and of which the foregoing notice is an exact duplicate.

(Name of person posting the notice)

Subscribed and sworn to before me this day of

A. D. 190

[Seal]

Notarv.

State of Oregon,

County of , — ^ss.

•

I, County Clerk of County,

State of Oregon, do hereby certii^ that a notice of appropriation
of water, of which the above notice is a full, true and correct copy,

was received for record on the . . da of •. . . A.

D. 190 , at o'clock M., and recorded in Book

Page .... of

Witness my hand and official seal this day of

190

[Seal]

Deputy.

. (Endorsed: — ) No Notice of Appropriation of "Water.

(Office Record) Stream By Diver-
sion in Sec Tp , R W. Bt Claim

cubic feet per sec. Posted 190

Piled in County, A. D. 190. . . .

OREGON.

875

(Printed blanks contelnlng theM formi can b« obteinsd from the State BnginMr,

and ihoold bo nsod In practioo.]

State of Oregon,
Connty of virion, — ss.

I hereby certify that the within notice of appropriation of wa-
ter was received for record on the day of ,

A. D. 190. . . . , at ...... o'clock M., ' and recorded in

Book , on Page Record of Water Bights.

INSTRUCTIONS.

Chapter 228, Laws of 1905, provides:

1. That a duplicate of the notice
of appropriation of water so attested
shall be ''filed in the office of the
clerk of the county in which such
notice is posted" within 15 days
after the date of posting.

2. That a certified copy of such
duplicate be filed in the office of the
State Engineer * * within 30 days there-
after. ' '

3. The copy of notice to be filed
in the office of the State Engineer
"shall be accompanied by sudi in-
formation, maps, field notes, plans
and specifications as may be necessary
to show the method of construction.
All such maps, field notes, plans and
specifications shall be made from ac-
tual surveys and measurements, and
shall be retained in the office of the
State Engineer.''

4. "The State Engineer shall re-
ceive the f oUowing fees to be collected
in advance and paid by him into the
State Treasury:

(a) ''For filing, and recording
notice of an appropriation of water,
map and field notes of the same, $5.00.

Statd Engineer.

(5) "For blue print copy of any
map, drawing, ten cents per square
foot or fraction thereof.

CONSTRUCmON. (B. and C,
5001 and 5031.) The actual construc-
tion of the proposed ditch shall be
commenced with six months after the
date of posting the notice of appro-
priation of water.

UNIT OF MEASURE. XB. and
C, 4996 and 5026.) The unit of
measure in the law for fiUng upon
water is meaningless (the number of
cubic inches of water by miners' in-
ches measurement under six-inch
pressure) and the cubic foot flow per
second of time should be used in-
stead, which is equivalent to 40 min-
ers' inches under 6 inch pressure.

REMITTANCES shpuld be by
draft or postal money order in ad-
vance, payable to the order of the
State Engineer at Salem, Oregon.

Copies of this notice will be mailed
upon application to the

STATE ENGINEER,
Salem, Oregon.

876 FOBMS.

[Printed bUnks eontftlnlng theae fomif can be obUined from the State Bagtettr,

and should be need In practice.]

SOUTH DAKOTA.

Water Division No District.

[Blanks to be filled by the State Engineer.]

Application for a Permit
To Appropriate Water Within the State of South Dakota.

[NOTE — Draw a line through items not applicable.]

1. Name of applicant

PostoflSce address , County , State

I. If a corporation :

(a) Name of same

(b) Date and place of incorporation

(d) Amount paid in

(e) Names and addresses of directors :

[NOTE? — A certified copy of articles of incorporation must accompany the

application.]

II. Method of accomplishing the work and financial resources
of the applicant :

(a) Method of accomplishing the work. (Whether by

contract, employment of others, or by direct or
personal labor)

(b) Cash on hand, $

(d) Bonds to be issued, $

(e) Other resources, $

2. Name of diversion works [if for enlargement, name of

existing works. And if for enlargement, permit No

If for enlargement, name of enlargement or extension].

3. Quantity of water claimed cubic feet per second [if

for enlargement, quantity claimed by enlargement or exten-
sion].

4. Source of water supply

5. Location of point of diversion [if for enlargement, loca-

tion of point of extension] on [right or left bank looking
down stream] bank.

6. Annual periods during which water is to be used

SOUTH DAKOTA. 877

[Printed blanks containing tbeat forms can be obtained from the State Bnglneer,

and should be nsed In practice.]

7. To be used for :

I. Irrigation or domestic use :

(a) Number of acres to be irrigated acres.

(b) Legal subdivisions to be irrigated

[NOTE — A list of lands to be irrigated, giving each subdivision and frac-
tion with acreage thereof, should be written here, or may be appended as a
part of this application. Same must also be shown on accompanying map.]'

II. Mining power, manufacturing, transportation, or other
purposes :

(a) Nature of use

(b) Amount of power to be generated

horse-power.

(d) Method of developing power

(e) Point where water will be returned to stream

8. Estimated cost of works :

(a) Headgates, $

(b) Pumping plant, $

(d) Canal — earth, $ ; rock, $

(e) Other structures, $ ; Total, $

9. Description of diversion works :

I. Nature of works: (Reservoir, dam, ditch, flume, pumping
plant, etc.)

II. Dimensions of works :

(a) Dam: Height feet; length at bottom

feet ; length at top ...... feet ; thickness, at bottom

feet; thickness at top feet; slope of

front (water) face ; slope of back face

; material used in construction

(b) Reservoir; capacity when, filled acre feet;

Surface area at high- water mark acres.

Depth at Surf ace Area at Each Feet of Capacity —

Outlet — Feet Depth at Outlet — Acres Acre-feet

Material

(d) Canal : Total length miles.

878 FORMS.

[Printed bUnks containing theM formi ean be obtained from the State Bnglneer.

and shonld be need in prectioe.]

Location Below Width at Water

Headgate Depth Bottom Width Line Grade per Mile

At mile feet feet feet feet

.At mile feet feet feet feet

At mile feet feet feet feet

[Give dimensions where reduc^tions in size are made.]

10. Time required for completion of work years.

11. Time required for complete application of water to the pro-

posed beneficial use years.

12. Choice of newspaper for publication of notice of intention to

appropriate <

•
State of South Dakota,
County of

I, f being first duly sworn on my oath depose

and say: That my relation to the above described undertaking is
that o¥. . .' , that I have read the above and foregoing state-

(Owner, manager or engineer^)

ment, and examined the map accompanying the same, and that I
know of my own personal knowledge that the matters therein stated
and shown are true.

Signed

Subscribed and sworn to before me this day of ,

190

Notary Public (or other qualified ofScer).
Bemarkb by State Engineer:

State of South Dakota,
County of

Pierre, South Dakota, , 190. . . .

This is to certify that the foregoing application was received

at this oflSce at o'clock M. upon the. day of ,

190 , and that after examination it was

State Engineer.

Deputy.

Number of permit

Date of first receipt of application , 190

Date of return to applicant for correction , 190. . . .

SOUTH DAKOTA. 879

[Printed blank! contftlnlng tbett fonns can be obUlned from the 8Ute BnglBeer,

and ebonld be need in praetlee.]

Date of receipt of corrected application , 190

Date from which application may claim right , 190

Approved , 190 , Recorded in Book , Page. . .

This is to certify that I have examined the foregoing application
for a permit to appropriate water of the State of South Dakota, and
I hereby grant the same as stated herein, subject, however, to the
following limitations and conditions:

1st. The equivalent of at least one-fifth of the work above speci-
fied is to be completed on or before 19

2d. The whole of said work is to be completed on or before

3d. The limit of time for proof of beneficial use of water appro-
priated in accordance herewith is , 19. . . .

4th. The water appropriated shall be used for the purpose of

5th. The prior right of all persons who, by compliance willi the
laws of the State of South Dakota, have acquired a right to the
use of water must not be injuriously affected by this appropriation.

6th. The amount of the appropriation herein granted shall not

exceed cubic feet of water per second of time; neither shall

it exceed the capacity of the above described system of diversion
works, nor the least aibount of water that experience may hereafter
indicate as necessary for the production of crops in the exercise of
the best husbandry; and furUier, said appropriation must be lim-
ited to not more than one-seventieth (1-70) of one cubic foot of
water per second of time for each acre of land to which water is

actually and beneficially applied on or before ,19 ;

said water to be used during the following described annual periods :

Witness my hand this day of , 190. . . .

* \ •

State Engineer.

Depaty.

(Endorsed: — ) No Division No District. Permit to

appropriate water from , County, South

Dakota. Name of applicant Name of diversion

works Date of first receipt at office of State En-
gineer , 190 Returned to applicant for correc-
tion , 190 Corrected application received

190 Date of witter right , 190 Recorded in

Book , Page One-fifth of work to be completed

190. . . . Whole work to be completed , 190 Final

proof of use of watep , 190 Approved

190 , State Engineer. By ,

Deputy.

880 FORMS.

[PzlBted blanks containing thdM fomi can be obtaUwd from the State Bnginetr,

and ilioQld be need In praetloe.]

Acknowledgment of Receipt of Application.

Your application dated 190 for a permit to ap-
propriate water from through the , to-
gether with a fee of $5.00 for the examination of same, the receipt
of which is hereby acknowledged, was received this day and has

been duly filed under the temporary number The application

will be examined in regular order as soon as possible, after which
you will be notified as to further action on your part.

Notification of Corrections to be Made.

Your application No for a permit to appropriate

cubic feet of water per second from near

in .County, South Dakota, has been received and ex-
amined and is returned to you herewith for correction in the fol-
lowing particulars:

In accordance with Section 20 of the Irrigation Code of South
Dakota you will now have sixty -days from date of this letter to
complete your application and to refile same in this office.

Directions to Publish Notice.

You are hereby notified that your application No.

.'. . .for a permit to appropriate water from through

the has been examined and found to comply with the

irrigation law of South Dakota and the regulations therounder.
You are now instructed to publish a notice of your intentions in
relation to this proposed appropriation once a week for four con-
secutive weeks in some paper of general circulation in the stream
system in which the works are to be located, in accordance with
section 21 of the Irrigation Code.

A notice is enclosed herewith which you are directed to pub-
lish in the , printed at , South Dakota,

in compliance with the law, you making the necessary arrangements
with the publisher as indicated in the letter to him, also enclosed.

The proof of publication, also sent herewith, accompanied by a

filing fee of $1, must be filed in this office on or beforo

190 , this date being sixty days from the date of these instruc-

SOUTH DAKOTA. 881

[PxlBted blanks containing theie forms can be obtained from the State Bngineer,

and should be need in praetloe.]

tions. In case of failure to file satisfactory proof within the time
stated, your application will thereafter be treated as an original
application filed on the date of the receipts of proof of publication
in proper form. It is to your interest, therefore, to see that the
proof is promptly returned to this office as directed.

State Engineer's Letter to Publisher.

Enclosed find form of notice of the application of

for a permit to divert water from in

county, South Dakota, which please publish once a week for four

consecutive weeks in your paper, the , as provided for

in Section 21, of Chapter 132, of the Session Laws of 1905 of South
Dakota.

The expense of the publication will be paid by , with

whom you will make the necessary arrangements, and to whom you
will kindly furnish proof of publication of this notice on or before
, 190

Please receipt for this notice on the form below as promptly
as possible, kindly mailing me also a copy of the first issue contain-
ing this publication that I may compare it with my records.

Published Notice.

(First Publication , 190 )

APPEOPBIATION OF WATEB.

Office of the Stale Engineer,
Pierre, S. D., , 190

Notice is hereby given that , whose postoffice

address is County, S. D., has made an application in

accordance with the provisions of the irrigation laws of South

Dakota for a permit to appropriate for beneficial use cubic

feet of water per second of time from through the

, the point of diversion of which is to be located upon

the bank of said stream in the V^ot the % of section

, township , range. , said water to be used for

the purpose of upon the

This application will be taken up by the state engineer at his
office at Pierre for consideration and appropriate action upon the
• day of , 190 , at 9 A. M., at which time all

Water Bights — 56

882 FORMS.

[Pii]ita4 blABki eontaliiliif thtM formi ean b« obtatiMd from tbe 8taU BuflMtf,

aad Chonld 1m uod .in pnctlet.]

persons who believe that the prior rights would be injnriouslj af-
fected, or that the allowance of the permit wonld be detrimental
to the public welfare, and also parties making the application, and
to be benefited, are notified to be present either by sworn affidavit
or in person for the purpose of presenting any relative testimony.

State Engineer.

No *

Proof of Publication.

State of South Dakota,
County of — ss.

, being duly sworn, deposes and says the an-
nexed, printed copy of Notice Intention to Appropriate Water was

taken from the , a newspai>er which during the whole

time of publication of said notice hereinafter stated, has been and

is printed and published in the of

County of and State of South Dakota ; that the said

notice was published in said newspaper on the following dates:

,'in each and every issue of the full number thereof,

the first publication being made on the day of

190 , and the last publication on the day of

19. ... , upon which days or times of publication aforesaid the news-
paper was regularly published, and that during the whole time
of said publication he was the printer and pub-
lisher of the said newspaper.

Subscribed and sworn to before me this day of

^M.» U, J.«/ • • • •

Notary Public County, S. D.

Notice of Approval and Statement of Fees.

You are hereby notified that your application No for a

permit to appropriate water from through the

has been duly examined, that notice t>f your intention has been
duly published, and that a hearing concerning the same was held

in tiiis office upon , 1^ , and that it has now been

approved and is being held for record subject to the payment of
$ > , as fees for recording the same. Upon receipt of this

SOUTH DAKOTA. 883

fPrinted blanka containing theM forma can bo obtained from the State Bngineor,

and dionld bo niod in prMtlco.]

amount, which should be within thirty days from the date thereof,
the application with permit wiU be recorded as soon as possible, in
regular order, and the permit forwarded to you. In case the fees
are not received within the thirty days prescribed, you will forfeit
your priority of application as stated in the instructions previously
sent you.

No.
Bejection of Application for

You are hereby notified that your application No for a

permit to appropriate water from through the

has been duly examined, that notice of your intention has been
duly published, and that a hearing concerning the same was held

in this ofSce upon , 190 , and that it has been found

necessary to reject the application for the following reasons:

You are further informed, however, that you are entitled to
appeal to the circuit court, should you so desire, within sixty days
of the date of this notification. (See Sec. 23, Irrigation Code of
1905.)

884 FOBMS.

[Printed blMiki oontaliiliif thtM foxmi can b« oMained from th» State

and ihoiLld b« naod In practice.]

UTAH.

(As in force February, 1908.)

Irrigation.

Application to Appropriate Water.

State of Utah.

Before filling this blank, Carefully read ''Rules and Regulations" on the

back hereof, and the notes in the body of it.

, 190

For the purpose of acquiring the right to use a portion of the
unappropriated water of the State of Utah, for irrigation pur-
poses, application is hereby made to the State Engineer,, based
upon the following showing of facts, submitted in accordance with
the requirements of Chapter 108 of the Session Laws of Utah, 1905,
as amended by the Session Laws of Utah, 1907.

NOTE. — The information given in the following blanks should be free
from explanatory matter, but when necessary a complete supplementary
statement should be made under the heading ''Explanatory."

1. The name of the applicant is

2. The postoffice address of the applicant is ,

3. The flow of water to be used in cubic feet per second is

3a. The quantity of water to be appropriated is (see note un-
der explanatory) t acre feet.

4. The water is to be used each year from to

Month Day Month Day

5. The river system or drainage area to which the direct source
of supply belongs is*

6. The direct souree of supply is. of (in)*the above

named river system (drainage area) in County.

7. The ** point of diversion" or "point of issuance" of spring
is situated at a point (see footnote)

NOTE — The ' * point of diversion " or " point of issuance ' ' of spring must
be located by course and distance or by rectangular distances with reference
to some United States land comer or United States mineral monument, if
within a distance of six miles of either, or if a greater distance to some
prominent and permanent natural object.

tWhen the quantity of water to be stored in any one reservoir exceeds
100 acre feet a separate application must be made for each reservoir.
•Leave blank.

NOTE — If the water is taken from a spring at its point of issuance the
words * ' point of diversion, or ' ' should be stricken out. If the water is taken
from a stream the words ''or point of issuance of spring *' should be
stricken out.

UTAH.

885

[Printed blanks containing these forme can be obtained from the State Engineer,

and ebonld be need in practice.]

8. The diverting works will consist of

9. The cross-section of the diverting channel will be

U V I o

strike out the ones not needed.

10. The nature of the diverting channel will be : earth, wood,
iron, concrete.

strike out the ones not needed.

11. The length of the diverting channel will be feet,

12. The top width of the diverting channel will be (if a ditch)
...: feet.

13. The bottom width of the diverting channel wiU be (if a
ditch) feet.

14. The width of the diverting channel will be (if a flume)
feet.

15. The depth of water in the channel will be (if a flume or
ditch) feet.

16. The diameter of the diverting channel will be (if a pipe)
feet.

17. The grade of the diverting channel will be

feet per mile.

18. The legal subdivisions of the land to be irrigated are as
follows :

, Total area acres

19. The character of soil in the above tract of land is

and the subsoil is

EXPLANATORY.

NOTE.—Never use the blank 3a ex-
cept when it is intended to store the
water to be appropriated. In such
cases the total quantity of water to
be stored should be given in acre feet
in blank 3a and the maximum flow
of water to be diverted at any time
from the supplying source for storage
purposes specified in cubic feet per
second in the space below. The legal
subdivisions of land covered by the
reservoir should be named, and the
periods of time during which the
water is to be stored and released
should be given in tlie space below.
If the water is released 'from the

reservoir into the natural channel of
the stream, the point where it is di-
verted from such stream should be
described in blank No. 7, and the data
given in blanks 8-17 inclusive should
be relative to the works used to divert
the water from the natural channel.
All other works should be described
under ''Explanatory" except where
the water is not stored in the natural
channel of the stream supplying it.
In such cases the "point of diver-
sion" is the place where the water is
taken from the supplying source and
should be described in blank No. 7,
and blanks 8 to 17 inclusive should
be used to descriBe diverting works.

886

FORMS.

[Printed blanks containing these forms ean be obtained from the Wtmtm

and dionld be need In practice.]

The following additional facts are set forth in order to more
clearly define the full purpose of the proposed appropriation :

Signature of Applicant

STATE ENGINEER'S ENDORSEMENTS.

Dates.

Application received at State Engineer's office.

Application examined and

Application returned for correction by

Reason for returning application

Corrected application received by

Corrected application examined and

Application rejected and returned to applicant. . . . :

Reason for rejecting application

Application approved and returned to applicant

This application is approved on condition, and it is hereby re-
quired that actual construction work shall begin within six months
and be fully completed by

State Engineer.

STATE ENGINEER'S MEMORANDA.

Dates.

Fee for filing application paid.

Cost of publishing notice deposited $

Publication began and was completed

Notice published in

Application protested by

Fee for recording and approving application paid $2.50.

Time for completing works extended to

Certificate of appropriation issued (No )

I hereby certify that the foregoing is a true copy of the applica-
tion made by to appropriate water and of the endorse-
ments thereon as shown by the records of my office.

Salt Lake City, Utah, 190.

State Engineer.

RULES AND REGULATIONS.

All applications must be dated at
place where made and signed by ap-
plicant.

Erasures must not be made on ap-
plications returned for correction, but
any matter may be removed from the

application by running a red line
through it.

All corrections must be made in red
ink and be plainly written.

Applications returned to applicants
for correction must be resubmitted to
the office within sixty days or the

UTAH.

887

[Pxintod blABki containing th«M forms can bo obtained ftom tho Stata Bnflnoor,

and ihonld bo mod in praetico.]

prioritj determined bj the original re- bic feet per seeond of water

ceiving date will Be loet. or less $2.?0

Applications resubmitted after tbe y^r eAmining and filing appU-

expiration of nx^ dayi wiU be ^^ions to appropriate ^re

treated as new applications in all re- ^.j..^ i^ ^„ui/*^^^^^ ^^^^a

specte. (See Section 36, Chapter 156, *^^ }^ ^'***'5 '^J ?o%n^"*

S^ion Laws of Utah, IM?!) ' f. Z^^"^ * 'f of $2 50 plus

No application or proof of appro- ^LOO for each cubic foot per

priation will be marked ** received" second in excess of that flow,

until the required fees have been paid. For approving and recording

Applicants will t>e informed by completed application 2.50

this office when the cost of publishing Por examining and filing written

notice of application is due. proof of appropriation 1.00

Applicants must advance cost of -p^, ^^„«,i„j„« ««^ «u«„, «.««

publiation within ten days after hav- ^^' T i 5 • !? T ^'

ing Been so informed. P'^f « "^ drawings that are

Bequest for extension of time to P*J* .^^ ***® P'®<>' °' »PP^o-

complete work will not be considered pnation 5.00

unless accompanied by sufficient affi- For issuing certificate of appro-*

davit and required fee. priation 1 .00

Do not back the application or p^^ ^^^j^ affidavit or any other

make any endorsemento on page 3. paper! . 1 00

FEES REQUIBED BY LAW FOR Applicants will save time and

STATE TBEASUBY. expense by familiarizing them-

For i^yftminiiig and filing appli- selves with the law before

cations to appropriate 10 cu- making applications.

(Endorsed: — ) No Application of to Ap-
propriate Water from for Irrigation Purposes.

Recorded in Book of Applications to Appropriate Water, on

pagcB .... lo • • ■ * .

Stock Watering.

[Same as first form, omitting numbers 18 and 19.]

Domestic and Municipal.
[Same as Stock Watering.]

Power.

[Same as the first form down to number 17. Thence continuing :]
18. The number of wheels employed in the development of power
wiU be

888 FORMS.

[Printed blanks containing theM forms can bo obtained ftem the Btete

and shoold bo nsod in praetlee.]

19. The size of the wheels will be. inches.

20. The make of the wheels wiU be

21. The wheels will operate under a head of feet

22. A total of horse-power will be prodnced.

23. The power thus produced will be used for electric lighting
and propelling machinery at , Utah.

24. After having passed through said wheels, the water will be
returned to the natural stream or source at a point described as td-
lows : (See note under No. 7)

[Remainder as in first form.]

Miscellaneoas Purposes.

[Same as first form, omitting numbers 18 and 19.]

Application to Appropriate Water for BUning..

State of Utah.

, 190 '

For the purpose of acquiring the right to use a portion of the
unappropriated water of the State of Utah, application is hereby
made to the State Engineer, based upon the following . showing
of facts, submitted in accordance with tiie requirements of Chapter
108 of the Session Laws of Utah, 1905.

The Purpose for which the Water is to he Apinropriated is Mining.

NOTE — ^If it is intended to use the water for some purpose other than
Irrigation, Power or Millihg, strike out the line above this note and fiU as
many of the first fifteen blanks as are applicable and then state the pur-
pose for which it is to be used under the heading '' Miscellaneous Purposes. '-

1. The name of the applicant is :

2. The postoffice address of the applicant is

3. The flow of water to be used in cubic feet per second is

3a. The quantity of water to be appropriated is (see note un-
der explanatory) .acre feet.

4. The water is to be used each year from to

Month Day Month Day

5. The water is diverted from in .*

Name river system or drainage area.

County.

6. The particular point at which the water is to be diveHed is
described as follows :

NOTE — ^If on a fork, branch, tributary or a feeder of said stream or
source of an isolated spring in its drainage area name same, and give eoune
and distance of "point of diversion" or "point of issuance" of spring to
■ome U. B. land corner if within six miles of one, if not, to some prominent
and permanent natural object.)

UTAH.

889

[Printed blanks cont»lning those forms can bo obtained from the State Engineer,

and should bo nsod In praetloo.]

7. The diverting works will consist of

8. The cross section of the diverting channel will be

u \^_y or o

(Strike out ones not needed.) •

9. The natnre of the diverting channel will be : earthen, wooden,
iron or concrete.

(Strike out ones not needed.)

10. The length of the diverting channel will be. . : feet.

11. The 'top width of the diverting channel will be (if a flume
or ditch) feet.

12. The bottom width of the diverting channel will be (if a flume
or ditch) feet.

13. The depth of water in the diverting channel will be (if a
flume or ditch) feet.

14. The diameter of the diverting channel will be (if a pipe)
feet.

15. The grade of the diverting channel will be feet

per mile.

16. The water will be used in mining district, at

the : mine, where the following ores or materials are

mined :

17. The particular purpose for which the water is to be used
is

This use will consume second feet of the water and

second feet of it will be returned to the natural stream or source
at a point (see note under No. 5)

MISCELLANEOUS PURPOSES.

EXPLANATORY.

(j^ever use the' blank 3a except
when it is intended to store the water
to be appropriated. In such cases
the total quantity of water to be so
stored should be given in acre feet.
The legal subdivision of land covered
bj the reservoir should be named, and
the periods of time during which the
water is to Se stored and released
should be given in the space below. If
the water, is released from the reser-
voir into the natural channel of a
stream the point where it is diverted
from such stream should be describect

in blank No. 6 and the data given in
blanks 7-15 inclusive should be rela-
tive to the works used to divert the
water from the natural channel. All
other works should be described under
** Explanatory" except where the
water is not stored in the natural
channel of the stream supplying it.
In such cases the ''point of diver-
sion" is the place where the water
is taken 'from the supplying source
and should be described in blank No. 6
and blanks 7 to 15 inclusive should be
used to describe the diverting works.)

[The rest of this form is substantially the same as those pre-
ceding.]

890 FOKlf&

[Pilstad btaaks MOtiialac

Proof of Appropriation of Water for InicatMm.

State of Utah,
County of

ly y being first duly sworn, do hereby certify

that I am the person, assignee or the of

who or which made an application to appropriate water from

in river system or drainage area in

Connly for irrigation purposes; that said application is filed in

the State Engineer's Office as No ; that I have completed the

work necessary to accomplish the diversion and perfect tiie appro-
priation of water in accordance with the said application : that the
following statement of facts is submitted in proof of the eo]np]^
tion of said work and the appropriation of said water; that I made
the said statement, and that each and all of the it^os contained
therein are true.

In witness whereof I have hereunto set my hand this dij

of '190

Signature of Appropriator.
Subscribed and sworn to before me this day of

Notary Public

STATEMENT.

1. Name of appropriator is

2. Postoffice address of appropriator is

3. The river system or drainage area to which the direct sourte
of supply belongs is

4. The direct source of supply is in the abore

named river i^tem (drainage area).

5. The "point of diversion*' of water or ** point of issuance*^
of spring is situated at a point

6. The diverting works consist of

7. Name of canal^ ditch, pipe line, conduit, or other diverting
channel (if named) is

8. The erosB-section of the diverting channel will be

uj u o

Strike out the ones not needed.

9. The nature of the diverting channel is earth, wood, iron,
cQ^crete.

strike out the ones not needed.

UTAH. 891

[Piliitad liUnki eontaliiliif tlMM formi can b« oMAinad from tho State Wngln— r,

mad ilioiiki b« iiied la pnettoe.]

10. The length of the diverting channel is feet.

11. The top width of the diverting channel is (if a ditch)
feet.

12. The bottom width of the diverting channel is (if a ditch)
feet.

13. The effective depth of the diverting channel is (if a ditch)
feet.

14. The width of the diverting channel is (if a flume)

feet.

15. The effective depth of the diverting channel is (if a flume)
feet.

16. The diameter of the diverting channel is (if a pipe)
feet.

17. The grade of the diverting channel is feet per

mile.

18. Construction of 'works was commenced ' 190

19. Construction of works was completed 190

20. Works were first used to divert and carry water

190

21. The flow of water appropriated is cubic feet

per second.

22. The quantity of water appropriated is acre feet.

23. The method employed in measuring the water was

24. Description of land irrigated is as follows : (See

Rules and Regulations on the back hereof.)

25. Total area of land irrigated acres.

26. Character of the soil is

' 27. Character of the subsoil is

28. Kind of crops produced are

GENEBAL BEMABKS.

State of Utah,
County of

and , having both been duly

sworn, each for himself says that he is i>ersonally acquainted with
the works constructed by for the diversion and appro-
priation of water from in. river system

or drainage area in county for irrigation purposes;

that said works have been fully completed and viaed to tiie extent
and in the manner particularly set forth in the foregoing statement
of facts; that he has read said statement and that each and all of
the items therein contained are true.

892 FORMS.

[Printed bluiks contaliiliif tIiM« formi eui 1m obUtned from th« State Bngtaie.

aad ihoiiUl b« vied In praetlM.]

In witness whereof, each has hereunto set his hand this

day of 190

Signature of Witness.

Subscribed and sworn to before me this day of

190

[Seal]

Notary Public.

STATK ENGINEER'S ENDORSEMENTS.
Dates.

Application received at State Engineer's office.

Application approved and allowed for com-
pleting works.

Time for completing works extended to

190

Proof of appropriation received at State Engineer's office.

Proof of appropriation examined and

Proof of appropriation returned for correction by

Corrected proof of appropriation received by

Corrected proof of appropriation examined and

Maps, profiles and drawings received at State Engineer's

office.

Maps, profiles and drawings examined and

Maps, profiles and drawings returned for corrected bj

.Corrected maps, profiles and drawings received by

Corrected maps, proffles and drawings examined and

, Certificate of appropriation issued (No )

STATE ENGINEER'S MEMORANDA.

Fee for examining and filing proof of appropriation I^

ceived $1.00.
Fee for examining and filing maps, profiles and drawings

received $5.00.
Fee for issuing certificate of appropriation received $1.00.

RULES AND REGULATIONS. cordance with the rules and reguli-

^ ^ ^ . tiona published in pamphlet form by

Section 44, Chapter 108, Session the State Engineer's office.

Laws of Utah, 1905, requires that ^o proof of appropriation will be

maps, profiles, and drawing shaU ac- marked *' received" until the fees

company the written proof of appro- have been paid and the maps, proflks.

priation. They must be made in ac- and drawings submitted.

UTAH.

893

[PrlntMl blanks oontainlnc tlieM forma eaa b« ol>taiii0d from the State Bngiiiaar,

and ahonld b« naed In praetlea.]

Erasures must not be made on It is desirable that a series of such

proofs of appropriation returned for measurements be made and the results

correction, but any matter may be re- given under ' ' General Bemarks. ' '

moved by running a red line through The method of nieasurement should be

it, or the proof of appropriation made given as by float, meter, weir, etc.
on another blank. In No. 24 only the lands under ac-

Proofs of appropriation returned tual irrigation should be included. It

for correction must be resubmitted jooBt be described by meters and

within twenty days of the date of re- bounds,
turn endorsed hereon.

The engineer who prepares the list OF PEES REQUIRED BY
maps, etc., should be one of the dis- LAW TOR STATE TREASURY,

interested witnesses to inspect the p • • i? fir #

work and make a sworn statement rel- ^5- „^™^' ;?^«^^ °if P ^i ^^

ative to the accuracy of the proof of °^ appropriation $1.00

the appropriation. ^^^^ examining and flUng maps.

At least one measurement of the ac- proflTes and drawings 5.00

tual flow 'or quantity of water appro- For issuing certificate of appro-
priated should be given in No. 21 or priation 1 .00

No. 22.

(Endorsed : — ) Proof of Appropriation of Rela-
tive to No ... . Application to Appropriate Water from

, for Irrigation Purposes.

Proof for Domestic and Municipal Purposes.
[Same as preceding form.]

Proof for Miscellaneous Purposes.
[Same as preceding form.]

Proof for Power Purposes.

[Same as preceding form down to number 23. Then as fol-
lows:]

24. The number of wheels employed in the development of
power is

25. The size of the wheels is inches.

26. The make of the wheels is

27. The head under which the wheels operate is

feet.

28. The total horse-power ^developed is

29. The places where the power is used are

30. The purposes for which the power is used are.

894 FORMS.

[Printed blMiki contaliiliif tlieM.f9nu ean 1m obtaliiad from flM

and slionld 1m niod in prMtiM.]

31. The point where the water is returned to the natural strean

is situated at a point

. [Remainder as in preceding form.]

Proof for Blining Purposes.

[Same as preceding form down to number 23. Then as. fol-
lows:]

24. The name of the mine where the water is used is

25. The name of the mining district in which the mine is located
is

26. The kinds of ores or materials mined are. . ,

27. The particular purpose for which the water is used

28. Quantity of water consumed in cubic feet per second is

29. Quantity of water returned to natural channel of stream in
cubic feet per second is

30. Point where the unconsumed water is returned to channel
of natural stream is situated at a point

[Remainder as in first form.]

Proof for Stock Watering Purposes.

[Same as preceding form down to number 23. Then as fol-
lows:]

24. Place where water is used

25. Quantity of water consumed in cubic feet per second is

• 26. Quantity of water returned to natural channel of stream
in cubic feet per second is

27. Point where unconsumed water is returned to channel of
natural stream is situated at a point

[Remainder as in first form.]

Oertiflcate of Appropriation of Water.

State of Utah.

Certificate No B Priority No B

Water Division

Whereas, It has been made to appear to the satisfaction of the
undersigned, State Engineer of the S.tate of Utah, that the appro-
priation of water from the Water Division, made by

has been perfected in accordance with the application therefor,

UTAH. 895

[Pxinted blMiki conulnlsg Umm fomi can b« obtalnad from tlie fltata Bnglneer,

and ihovld be vied in practice.]

dated 190 , and recorded in the office of the State En-*

gineer on page in Book of the record of applications to

appropriate water; Wherefore, Be it known that I, ,

State Engineer of the State of Utah, under and by authority and
direction of the provisions of Chapter 100 of the Laws of Utah
of 1903, on ''Water Rights and Irrigation," do hereby certify that

the said of , in County, State

of Utah, is entitled to the use of cubic feet of water

per second, subject to the following restrictions, to wit :

The date of the appropriation is 190 , and the

priority number of the right is No B.

In Witness Whe^ceof, I have hereunto set my hand and affixed

the seal of my office this day of .A. D.

190

State Engineer.

(Endorsed: — ) Certificate of Appropriation of Water. State

of Utah Water Division Certificate No B

Priority No B To For Piled for

record this day of , 190 , at o'clock M.,

and recorded in Book of Water Page

Kecorder County, Utah.

This Certificate must be filed for record with Recorder of

County, Utah, within thirty days from its date.

NOTE. — Bules and BegnlationB of the State Engineer's office are printed
in pamphlet form and must be followed by the appropriator.

896

FORMS.

[Pxliitod blABki ' eonUliiiiig tlMM f onu ean 1m obtalnad from

and Chonld b« mod In prafetieo.]

W70MIN0.

(Ab in force February 17, 1908.)

"The permit when issued is simplj
a privilege given by the public, which
owns the water, to some one who pro-
poses to make a beneficial use there-
of. A pormit protects a party while
construction is in progress and while
the lands are being reclaimed. If the
party holding the permit fails to com-
ply with its provisions, it is canceled.
If work is carried on under the pro-

visions of the permit, the DivisioB
Superintendent makes an inspectiom
takes the testimony of the ^water user
under the permit and submits the
Fame to the State Board of Control
which issues the final certificate of ap-
propriation." • (Letter to the writer
from Clarence T. Johnston, State £b-
gineer of Wyoming, under date of
February 17, 1908.)

The State Engineer's Office Must be Notified Immediately When You Com-
plete Your Ditch.

Application for a Permit to Divert and Appropriate the Water

of the State of Wyoming.

Water Division No District No

I, of , County o'f ,

State of , being duly sworn according to law, upon

my oath say :

1. The name. ... of the applicant.

2. The postoflBce address of the applicant

3. The use to which the water is to be applied is

4. The name of the ditch or canal is

5. The source of the proposed appropriation is

6. The headgate of the proposed ditch or canal is located

of Section , Township , Range

7. The said ditch or canal is to be miles long and to

pass through the following lands (give route by courses and dis-
tances, or by naming legal subdivisions crossed) :

8. The dimensions of said works: (a) [At headgate] Width on

top (at water-line) feet ; width on bottom feet; depth

of water feet ; grade feet per mile.

(b) Give dimensions at each point where reduced in size,
stating miles from headgate :
[At ]* Width on top (at water-line) feet ; width on

bottom feet ; depth of water .feet; grade feet

per mile.

WYOMING. 897

• *

[Printed blaaks eonUiniiig fhese forms can be obtained from fbe State Engtneer,

and shoiiUl be need in praotlce.]

[At ] Width on top (at water-line) feet ; width on

bottom feet J depth of water feetj grade feet

per mile.
[At ] Width on top (at water-line) feet ; width on

bottom feet; depth of water feet; grade feet

per mile.

9. Describe the character of proposed works, stating :

1st. The nature of the material to be moved. 2nd. Number
and length of tunnels, tf any. 3rd. Amount of fluming, if any.

10. The estimated cost of said ditch is dollars.

11. The land to be irrigated has a total area of

acres, described as follows: (Give estimated acreage in fractions of
subdivisions)

12. Construction will begin on proposed worka on or before
,190

13. The time required for the completion of ditch and other
distributing works is year from , 190

14. The time required to complete the application of water to
the beneficial use stated in this application is year from

15. A map of fhe proposed ditch or canal, prepared in accord-
ance with Chapter 14, B. S. 1899, accompanies this application.

Signed :

NOTE. — The statements in the foregoing application must comply with
the requirements of Chapter 14, B. S. 1899.

The State of Wyoming,
County of , — ss.

I hereby certify that the foregoing application was signed in

my presence and sworn to before me by this day

of 190

The State of Wyoming,
State Engineer's OfSce,

This is to certify that I have examined the foregoing applica-
tion and have returned the same without my approval for the fol-
lowing reasons :

Witness my hand this day of , A. D. 190

State Engineer.

Water Bights — 67

898

F0BM8.

[Printed bUnks eontaininc iheie foxmi aa be obUSned firom tlie

Mid ibovld be iiMd In praetlee.]

The State of Wyoming,
State Engineer's OfiSce,

This is to certify that I have examined the foregoing applica-
tion and do hereby grant the same subject to the following limiU-
tions and conditions :

Construction of proposed work shall begin within one year &om
date of approval.

The time for completing the work shall terminate on December
31, 190. ...

The time for completing the appropriation of water for beD^
ficial use shall terminate on December 31, 190

The amount of the appropriation shall be limited to one cubic
foot per second of time for each seventy acres of land reclaimed

on or before December 31, 190 , and the additional volume used

for '. purposes on or before said date.

Witness my hand this day of , A. D. 190. . . .

State Engineer.

(Endorsed: — ) No Application for a Permit to Appro-
priate the Water of the State of Wyoming. Division No

District No

The State of Wyoming,
State Engineer's OfiSce,

This instrument was received and filed for record on the

day of , A. D. 190 , at o'clock M., and

duly recorded in Book of , on page

• • . .

(** During the two years ended Sep-
tember 30th, 1906, 1,127 pennits were
issued for new ditches. These permits
describe a total of 1,315,011.87 acres
of land to be reclaimed and provide
for 2,083.16 miles of main canals and
ditches. The total estimated cost of
construction is $4,427,275.40. The es-
timated cost simply refers to the ex-
pense of digging the ditches and
building the necessary structures
along the line of each. As the total
cost of irrigation works is about three
times as great as the estimated cost of
construction, it is safe to say that
$12,000,000.00 will be expended in
Wyoming in this important work, un-

State Engineer.

•

der the permits issued in the two yean
covered by this report. This refers
only to new ditches." Beport of
Clarence T. Johnston, State Engineer.
1905-1906.)

The following consists of extracts
from pages 12 to 16 of the State En-
gineer's Beport for 1903-1904.

"When an application for permit
is received in the office of the State
Engineer in proper form it is filed
and a receipt is sent to the appli-
cant." "The temporary numben
given all applications for permit refer
to the book, page, and location on tlie
page where the same has been entered
on the filing record. The filing record

WYOMING.

899

books are numbered consecutively and
ruled 80 that there are six spaces on
eabh page, one for each application.
The filing record, therefore, indicates
>vhen an application was received, the
name of the stream from which water
is proposed to be taken, the name of
the ditch, canal or reservoir, the name
of the applicant, his postoffice address
and as to what disposition was inade
of it. A permit issued with the num-
bers 5 3-24 indorsed on it was re-
corded in space 3, from the top of
page 24, book 5. After the applica-
tion is thus filed it is placed in a case
whete all other applications from the
same division lie until they can be ex-
amined. Upon examination ^hey are
transferred to another .case marked
'Applications for Approval.' When
approved they are called permits and
are filed in a third case marked 'Per-
mits for Record.' They are then re-
corded, g^ven a number and mailed to
the applicant with the following letter
of transmittal:

*' 'Inclosed you will find permit,
which has been approved and recorded.
This is not a water right, but is, in a
way, a contiact between you and the
- State. It should be held by the owner
of the lands to be irrigated and not
disposed of in making final proof on
desert land or for any other purpose.
When the work has been completed
the Division Superintendent will take
proof and the Board of Control will
issue a final certificate of appropria-
tion which corresponds to a land pat-
ent. Water belongs to the land it ir-
rigates, and not to the ditch or ditch
owner. When the works are com-
pleted the State Engineer's office
should be so notified on the attached
stub. Should it be impossible for you
to complete the work before the ex-
piration of the time fixed in the per-
mit, you should, if you have good
reasons for so doing, apply to the
State Engineer for an extension of
time. All such requests must be
received before the date of expira-
tion, otherwise you will have to re-
fine and lose something in priority
by your neglect.'

"Each application is accompanied
by two maps. When the application
is approved one of the maps is like-
wise approved and returned with the
permit; the other being filed perma-

nently in the State Engineer's office
under the number of the permit. ' '

"The applicant has thus far made
his plans and the State has approved
of them. He knows he has the pro-
tection of the State if he conforms
with the conditions of his permit.
The next step in the procedure, there-
fore, lies entirely with him. He must
begin work within one year from the
time the permit is approved. When
the irrigation works are completed he
notifies the State Engineer on the stub
sent with and attached to the letter
of transmittal. The State Engineer
receipts therefor.".

* ' It is then the duty of the State to
act. The records are indorsed show-
ing the date when the notice of com-
pletion was received and a card is pre-
pared for the use of the Division
Superintendent, setting forth all of
the essential features of the permit.

"It is the duty of the Superin-
tendent, if the stream has been ad-
judicated, to take the proof of the
applicant as soon as practicable.
This proof is submitted to the Board
of Control and the final certificate
of appropriation is thereafter is-
sued.

' * Many of the streams of the
State furnish an abundant supply of
water during the late spring and
early summer months, yet fail to
provide enough for the lands re-
claimed during the remainder of the
irrigation season. When permits
are issued under these conditions the
applicants are advised to provide
reservoirs ana where this is impos-
sible they are stamped as follows,
showing that only flood waters can
be used:

" 'The records of the State Engi-
neer's office show the waters of
to be largniy appro-
priated. The appropriator under
this permit is hereby notified of this
fact and that the issuance of this
permit grants only the right to di-
vert and use the surplus or waste
water of the stream and confers no
rights which will interfere with or
impair the nse of water by prior ap-
propriatora. '

"This is not advisable on some
streams because it often happens
that the applicant proposes to use
the water at points far distant from

900

FORMS.

any settlement and the cost of ad-
ministration of policing the stream
would be excessive. '

"The maps which accompany ap-
plications for permit form one of the
most important portions of the rec-
ords. Until recently any person
who desired to call himself a Pur-
veyor could comply with the law in
a way, make his own map and trust
to the leniency of the State Engin-
eer to have it accepted. These maps
have, until the law prescribed other-
wise, been received in all conditions,
good, bad and indifferent. Many
maps are now on file which are of
Bo value to the applicants. Some
are drawn in lead pencil, and the
material upon which the work has
been done may be wrapping paper,
a piece of an old oilcloth table cover,
or anything that might have been
convenient at the time. Now, at
least one copy mnst be drawn on
tracing linen. It must show the lo-
cation of the irrigation works to be
constructed and the area of land to
be irrigated in each forty-acre tract.
Wherever the canal line or reser-
voir boundarv crosses a section line
the 'distance to the nearest corner
must be indicated. Since January
1st, 1904, all maps have been re-
quired to have upon them the fol-
lowing engineer's certificate:

** 'Certificate of Surveyor.

** 'State of Wyoming,
County of , — ss.

*' 'T of

hereby certify that this map was

made from notes taken during an
actual survey made by me on

, 190 , and that

it correctly represents the irri-
gation works described in the ar-
companying application, together
with a meander of streams, and
shows accurately the location and
area of the lands proposed to be ir-
rigated in each forty-acre tract.

t ( <

"This requirement has had a
marked effect in producing better
maps. It is not so much that the
work of surveyors has improved or
needed improvement, but actual sur-
veyors now do the work. Prior to
this requirement maps were com-
monly prepared from surveys made
in offices. The State Engineer's
office has received some protests
against the use of the certificate.
one correspondent holding that
'Any man of common intelligence
could prepare maps from the appli-
cation.' The writer forgot that the
map should be drawn from notes
taken during an actual, survey on
the ground and that the application
should be based on the map rather
than the contrary.

"Further improvement could still
be made if the irrigator is to be
fully protected and the recommenda-
tions concerning licensed surveyors
are made after discussing the mat-
ter wfth all who are interested in
having this work done accu-
rately. * '

The State Engineer's Office Must be Notified Immediately When Ton

Complete Your Ditch.

Application for a Permit to Enlarge an Appropriatioii.
Water Division No District No. ....

Enlargement of the

I, of , County of ,

State of , being duly sworn according to law, upon

my oath say:

1. The location and description of the ditch to be enlarged is
as follows :

WVOMING. 901

[Printed blanks containing thete fonns can be obtained ftom the Stoto Engineer,

end ehonld be need In practice.]

2. The headgate is situated of Section ,

Township . . . . : , Range

3. Said ditch is miles long and passes through the fol-
lowing lands (give legal subdivisions), the same being correctly
shown on the map accompanying this application :

4. The dimensions of said ditch are: Width on top (at water-
line) ...... feet; width on bottom feet; depth of water

feet ; .grade feet per mile.

5. Said dit<jh now serves to irrigate the following des|cribedi
land:

6. The total area now irrigated from said ditch being

acres.

7. Application is hereby made for permission to enlarge or ex-
tend the use of water through the above named and described ditch
and to divert and appropriate the water of the State as follows :

1. The name of the applicant

2. The postoflfice address of the applicant

3. The use to which the water is to be applied is

4. The name of the ditch or canal is ^

•5. The source of the proposed appropriation is

and the head of the proposed extension is located

Section , Township , Range

6. The said ditch or canal as enlarged is to be miles

long and to pass through the following lands (give sections, town-
ships and ranges) :

7. The dimensions of said ditch are to be: (a) [At headgate]

Width on top (at water-line) feet; width on bottom

feet; depth of water ...... feet ; grade feet per mile.

(b) Give dimensions at each point where reduced in size,
.stating miles from headgate :
[At ] Width on top (at water-line) '. feet; width

on bottom feet; depth of water feet; grade

feet per mile.
[At ] Width on top (at water-line) ...... feet ; width

on bottom feet ; depth of water feet ; grade

feet per mile.

8. Describe the character of proposed works, stating: 1st. The
nature of material to be moved. 2d. Number and length of
tunnels, if any. 3rd. Amount of fluming, if any.

•If the proposed work is to be an extension of the orijipnal ditch, give
the location of the head of the extension by courses and distances from
the nearest Government corner.

902 FORMS.

[Printed bUnks containing these forme can be obtained from tlie Slate Engliwir

and slionld be need in praetiee.]

9. The estimated cost of said enlargement is Dol-
lars.

10. The land to be irrigated has a total area of acres,

described as follows: (Give estimated acreage in fractions of sab-
divisions) •

11. Construction of the proposed enlargement or extension will
begin within one year from date of approval of this application.

12. The time required for the completion of enlai^ement or ex-
tension is year from , 190

13. The time required to complete the application of water to

the beneficial use stated in this application is year from

, 190

14. A map in duplicate, prepared in accordance with the pro-
visions of Section 35 of Water Laws, accompanies this applieatiozL

Signed :

NOTE. — The statements in the foregoing application mast comply with
the requirements of Chapter 14, R. S. 1899.

NOTE. — ^Before applications for the enlargement of ditches can be ap*
proved, the written consent of the owners of such ditches must be securej.
and this must accompany the application.

The State of Wyoming,
County of , — ss.

I hereby certify that the foregoing application was signed in my

presence and sworn to before me by this

day of ; . . ., 190

The State of Wyoming,
State Engineer's Office, — ss.

This is to certify that I have examined the foregoing application
and have returned the same without my approval for the following
reasons :

Witness my hand this day of , A. D. 190

Stat^ Engineer.

The State of Wyoming,
State Engineer's Office, — ss.

This is to certify that I have examined the foregoing application
and do hereby grant the same subject to the following limitations
and conditions :

Work will begin one year from date of approval.

WYOMING.

903

[Printed bUnks eontalnlnf theie formi aa be obtadned Item tbe Bute Engineer,

and ilionld be need In pxmotlee.]

The time for completing construction shall* terminate ,

190

The time for completing the appropriation of water for bene-
ficial nse shall terminate , 190. . . .

The amount of the appropriation shaU be limited to one cubic
foot per second of time for each seventy acres of land reclaimed on

or before , 190 , and the additional volume applied

to purposes on or before? that date.

Witness my hand this day of , A. D. 190

State Engineer.

(Endorsed: — ) No Application for a Permit to Appro-
priate the Water of the State of Wyoming. Division No

District No

The State of Wyoming,
State Engineer's Office, — ss.

This instrument was received and filed for record on the

day of , A. D. 190 , at o'clock M., and

duly recorded in Book of , on page

(* * Whenever the area under an ex-
isting ditch is to be increased an en-
largement permit is issued. Some-
times this requires the enlargement of
the ditch or canal in order that the
supply may be ample for all lands to
be covered. During the past two
years 346 enlargement permits have
been issued. These describe 462,206.74
acres of land and provide for 1,496.31
miles of main canal and ditches.
The total estimateQ cost is $5,012,-
549.00. It will be interesting to note

State Engineer.

that the cost of enlargements is much
greater than the cost of original
canals. This is due to the fact that
original ditches usually cover tbe
lands that can be easily irrigated
while the enlargements cover the areas
which could not be reached at first
owing to the cost of reclamation. It
is probable that $15,000,000.00 will be
spent in the reclamation of the lands
described in enlargement permits."
Report of Clarence T. Johnston, State
Engineer, 1905-1906.)

The State Engineer's Office Must be Notified Immediately upon the Com-
pletion of these Works.

Application for a Permit to Construct the Reservoir, and

to Divert and Appropriate the Water of the State of Wyom-
ing.

Water Division No District No

I, of , Connty of , State

of , being duly sworn according to law, upon my

oath say:

1. The name of the applicant

904 FORMS.

[Printed blanks containing thete fonni can be oMainad firom the State

and ilioiild be nsad In piactloe.]

2. The postoflSce address • .of the applicant

3. The name of stream from which reservoir is to be filled and
appropriation made is

4. The location of the proposed reservoir will be in Sec ,

T N., R W., described as follows:

(a) State whether situated in channel of running stream,
and give character of material at outlet

(b) If not in channd'of running stream, state how it is to
filled. If through canal, give name and dimensions

(c) The construction of dam^.the material of which it is
to be built and the method of protecting from waves are as fol-
lows :

5. The area of reservoir is. .... .acres, with maximum depth

of • .feet and approximate mean depth of water of feet.

6. The dimensions of dam are : Length on top feet.

Length on bottom feet. Width on top feet. Width

on bottom feet. Depth feet. Slope of front

Slope of back Height of dam above water-line when full

feet.

7. The outlet and wasteway, with dimensions of each, are as
follows :

8. The use to which the water is to be applied is

9. The name of the ditch or canal is

■ (If ditch is already constructed, give No. of Permit or date of constme-
tion.)

10. The headgate of the proposed ditch or canal is located

of Section , Township North, Range

West.

11. Said ditch or canal is to be miles long and to pass

through the following lands (give route by courses and distances,
or by naming legal subdivisions crossed) :

12. The dimensions of said ditch are to be: .(&) [At headgate]

Width on top (at water-line) feet; width on bottom

feet ; depth of water feet ; grade feet per mile.

(b) Qive dimensions at. each point where reduced in size,
stating miles from headgate :
[At ] Width on top (at water-line) feet ; width on

bottom feet; depth of water feet; grade feet

per mile.
[At ] Width on top (at water-line) feet ; width on

bottom feet; depth of water feet; grade feet

per mile.

WYOMING. 905

[Printed blmnki eonuinlnc theie formi ean 1m obUined from the 8UU EngiiiMr,

and ■honld ba aaad in praekiee.]

13. Describe the character of proposed ditch, stating : 1st. The
nature of material to be moved. 2nd. Number and length of
tunnels, if any. 3rd. Amount of fluming, if any.

14. The estimated cost of said ditch is $ and of the reser-
voir is $

15. The land to be irrigated has a total area of .acres,

described as follows: (Oive estimated acreage in fractions of sub-
divisions)

16. Construction* will begin on proposed works on or before
, 190

17. The time required for the completion of ditches and other
distributing works is year from , 190

18. The time required to complete the application of water to

the beneficial use stated in this application is year

from , 190

Signed :

NOTE. — The statements in the foregoing application, together with the
maps and plans, must comply with the requirements of Chapter 14, R. S.
1899.

The State of Wyoming, .
County of . . . ^ , — ss.

I hereby certify that the foregoing application was signed in my

presence and sworn to before me by this

day of , 190

The State of Wyoming,
State Engineer's OflSce, — ss.

This is to certify that I have examined the foregoing application
and have returned the same without my approval for the following
reasons : '

Witness my hand this day of , A. D. 190

State Engineer.

The State of Wyoming,
State Engineer's Office, — ss.

This is to certify that I have examined the foregoing applica-
tion and do hereby grant the same subject to the following limita-
tions and conditions :

Construction of proposed work shall begin within one year from
date of approval.

906 FOBMS.

[Printed blanks containing tliesa fonni can be obtained from tlie State

and ihonld be need In practloe.]

The time for completing the work shall terminate on December
31, 190

The time for completing the appropriation of water for bene-
ficial use shall terminate on December 31, 190

The amount of the appropriation shall be limited to one cubic
foot per second of time for each seventy acres of land reclaimed on
or before December 31, 190. . . ., and the additional volume used
for purposes on or before said date.

Witness my hand this day of , A. D. 190

State Engineer.

(Endorsed : — ) No Application for a Permit to Construct

the Reservoir and to Appropriate the Water of the

State of Wyoming. Division No District No

The State of Wyoming,
State Engineer's Office, — ss.

This instrument was received and filed for record on the

day of , A. D. 190 , at .', o'clock M., and

duly recorded in Book of Reservoirs and Water Appropria-
tions, on Page

State Engineer.

The State Engineer's Office Must be Notified Immediately upon the Com-
pletion of these Works.

Application for a Permit to Construct the Beservoir, and

to Store the Unappropriated Water of the State of Wyom-
ing.

Water Division No District No

I, of , County of Stat^

of , being duly sworn according to law, upon my oath

say:

1. The name of the applicant

2. The postoffice address of the applicant

3. The name of stream from which reservoir is to be filled and
appropriation made is

4. The use to which the water is to be applied is

5. The location of the proposed reservoir will be in Sec ,

T N., R W., described as follows :

(a) State whether situated in channel or running stream,
and give character of material at outlet

WYOMING. 907

[Printed blanks containing theia formi can be obtained from the State Engineer,

and ibonld be need In praotlee.]

(b) If not in channel of ronnin^ stream, state how it is
to be filled. If through canal, give name and dimensions

(c) The construction of dam, the material of which it is
to be biiilt.and the method of protecting from waves are as follows:

6. The area of reservoir is acres with maximum depth

of feet and approximate mean depth of water of feet.

7. The dimensions of dam are: Length on top feet.

Length on bottom feet Width on top feet. Width on

bottom feet. Depth feet. Slope of front

Slope of back Height of dam above water-line when full

feet.

8. The outlet and wasteway, with dimensions of each, are as
follows :

9. The outlet of the proposed reservoir is located

of Section , Township North, Range West.

10. The estimated cost of said reservoir is $

11. Construction will begin on proposed works on or before
, 190

12. The time required for the completion of the work is

year from , 190

Signed:

The State of Wyoming,
County of

I hereby certify that the foregoing application was signed in my

presence and sworn to before me by this

day of , 190

NOTE. — ^The statements in the foregoing application, together with the
maps and plans, must comply with the requirements of Chapter 69, Ses-
sion Laws 1903.

The State of Wyoming,
State Engineer's OfSce, — ss.

This is to certify that I have examined the foregoing applica-
tion and have returned the same without my approval for tiie fol-
lowing reasons :

Witness my hand this day of , A. D. 190

State Engineer.

908 FORMS.

[PxiBted bUnlES eontainlnc theie forms can 1m oMained tnum tlte

and ihoiild 1m mad In praetiea.]

The State of Wyoming,
State Engineer's Office, — ^ss.

This is to certify that I have examined the foregoing applii-a-
tion and do hereby grant the same subject to the following limita-
tions and conditions :

Constniction of proposed works shall begin within one year
from date of approval.

The tima for completing the work shall terminate on December
31, 190

Witness ray hand this day of , A. D. 190

State Engineer.

(Endorsed: — ) No Application for a Permit to Con-
struct the Reservoir and to Store for a Benf-

ficial Use the Unappropriated Water of the State of Wyomin?
Water Division No District No

The State of Wyoming,
State Engineer's Office, — ss.

This instrument was received and filed for record on the

day of , A. D. 190 , at o'clock M., ano

duly recorded in Book 3 of Reservoirs on Page

State Engineer.

(Report of Clarence T. Johnston, <iuriug the same period. Only :>:'

State Engineer, 1905-1906.) reservoir permits had been issued :e

** Three hundred and forty-three the 14 years preceding during which

reservoir permits have been issued the law has been in operation.*'

MAPS.

909

Section , Township . .

Bange east.

north,

The abOTe plat correctly showB my irrigated and irrigable lands under

Plat accompanying application for permit to appropriate water in Nevada.
This cut is reduced from the original.

Township Bange. . . .

of 6th P. H Ooonty .

ToTFnBhip plHt acrom panning application
!Ut is rcduceil from the size of the orifpnal.

MAPS.

911

I W

AfLOr

\^ L

-aec-

se*-

-f

-seor

...

• •^^ ••■«

aecr-

— -• j~.

I
I

.-..».-,

-K-t---^ f_

•CCo

t-*te:-r

>«ec«-t

ajLc 1

ACC*— U

I
I

•t"

}

»C-

-JL.
»

-scc-

see-

.C^->"

T-

-r-

-U

L,.^.

I — .-

— -J-.

Plat accompanjing application in Idaho. Scale: 2 inches — 1 mile. Draw
plan in ink.

INDEX.

[Raftroneet ar» to Pafet.]

ABANDONMENT. See Forfeiture; Non-naer, etc.

considered generally, 350.

abandoned ditches, use of, 205.

appropriation dependent on, 201.

as affected by decree adjadicating priority, 617.

burden of proof, 327.

conditional, 848.

definite period of non-user, 368.

definition of, 355.

delay in putting water to use, 271.

determination of, in snit to change point of diversion, 290, 352.

distinguished from forfeiture, 364.

evidence rebutting, 365.

implied, 346.

lapse of time not alone an abandonment, 367.

of decreed priority, 352.

of ditch separate from water right, 352.

of government reservations, 136.

of part of water right, 353.

of public service, 629.

of riparian rights, 515.

of uncompleted ditch, 203.

of waste water, 356, 360, 425, 426.

of waste, ceasing abandonment, 357.

of wells, 196.

presumption of, 356.

question of intent, 367.

revivor of, 353.

sale after, 338.

sale of part of water right, 339.

sale, parol, or faulty deed, 346, 363,

voluntary, and question of fact, 350.

when complete, 353, 365.
ABATEMENT. See Nuisance.
ACCELERATION, 508.
ACCESS.

necessity for, in appropriating, 144.

necessity for, to navigable waters, 151, 168.

as basis of riparian right, 427, 435, 454.

as basis of civil law, 5, 416.
ACCESSION, 359.
ACCRETION.
- riparian .rights, 517.

law of, based on civil law, 418.

Water Rights— 58 (913)

914 INDEX.

[B«f«r«iiMt an to Paget.]
ACBQUIA.

law of, 5, 49, 147.

See Mexican Law.
ACKNOWLEDGMENT.

of notice of appropriation before recording, 191.
ACQUIESCENCE. See Injunction.

distinguished from estoppel, 387.
ACREAOB.

dutj of water per second-foot, 276.

enlargement of, 268, 284.
ACBE-POOT.

unit of volume, 276.

duly of water, 276.

equivalence in cubic feet or gallons, 278.
ACT OF CONGRESS. See Congress.
ACT OF GOD, 259, 354.

See Drainage; Negligence, etc.
ACTION. See Parties; Suit; Injunction, etQ.

causes of, joinder, 325.

right of, for use of waste water, 251.
ACTUAL APPLICATION TO USE. See Actual Diversion; Abandonment;
Purpose of Appropriating; Beneficial Use; Method of Appropriating,
etc.

certificate of, 223.

necessity of, before appropriation complete, 58, 212, 642.

proof of, under irrigation codes, 224.

reasonable time for, 271.
ACTUAL DIVERSION. See Actual Application; Completion; Method of
Appropriating, etc.

essential to appropriation, 57.

appropriation by, 183.

appropriation by, under irrigation codes, 218.
ADJUDICATION OF PRIORITIES UNDER SPECIAL STATUTES. See,
also, Administration; Supervision; Quieting Title; Apportionment,
etc.

Colorado system, 605.

Wyoming system, 600.

abandonment of decreed rights, 352.

analogous to quieting title, 323.

appeal from administrative officers, 604.

by administrative officials, how far conclusive, 601, 602.

by State official, suit by attorney general, etc., 74.

carrier or consumer, 610.

change of diversion determined in same suit, 613.

confined to ditches and not applied to individual users, 610.

consumers as parties, 646.

courts act as of general jurisdiction, 323.

decree fixing time for beginning actual use, 273.

due process of law, 608.

effect of decree, 615.

form of decree, 614.

in Federal courts, 610.

involving more than one water district, 612.

limitations, statute of, 613.

non-use of decreed right, 617.

not a suit concerning State property, 74.

numbering decree, 614.

on interstate streams, 171, 172 et seq.

INDEX.

915

[Saforenctf ar« to Pafei.]

ADJITDICAtlON OF PRIORITIES UNDER SPECIAL STATUTES (Con-
'tinued).

parties, 612.

priorities attached to lands, 612.

procedure under special statutes, 612.

res adjudicata, when, 611.

special statutory suits in court, 605 et seq.

special suits in court, constitutionality of statutes, 608.

summons, form and service of, 609.
ADMINISTRATION. See Supervision.

administrative law, 49.

Wyoming system, 591.

permit holder may be enjoined, 304.
ADMINISTRATOR.

right of, to sue to quiet title, 127, 322.
ADMISSION INTO UNION.

title of State to swamp lands, 178.

title of State to stream-bed, 168n.

title of State to waters, 77, 80.
ADVERSE USE. See Prescription; Limitations, Statute of.
AFTER-ACQUIRED PROPERTY.

feeding deed by estoppel, 338.

use of water on, 271.
AGRICULTURE.

conflict with mining, 18, 305, 585.
AIR.

property in, 415.
ALASKA.

date of priority in, 209.

law of, 40.

acts of ("ongress applying to, 227.
ALIENS.

appropriation by, 130.
ALLEGATIONS IN COMPLAINT. See Pleading.
ALTA CALIFORNIA, 2.
AMOUNT OF WATER. See Quantity.
ANIMAL.

burrowing of, causing damage, 259.

larceny of, at common law, 239n.

wild animals, property in, 415.
ANNUAL FLOODS. See Storm Waters; Floods.
ANNUAL INCREASE.

of irrigation, 269.
APPEAL.

procedure on, 615.

from State Engineer, when exclusive, 217.

from State Engineer, removable to Federal courts, 311.

from State Engineer, whether judicial suit, 223, 604.
APPLICATION FOR PERMIT. See Permit; Method of Appropriating, etc.
APPLICATION TO USE. See Actual Application; Beneficial Use, etc.
APPORTIONMENT. See Adjudication of Rights; Quieting Title; Settling
Rights, etc.

between appropriators, 322.

between States, 90.

between tenants in common, 323.

by extent of land or time, 592.

by time or volume, 466.

916 INDEX.

[Baforeneef ar» to Paget.]

APPORTIONMENT (Continued).

evidence necessary, 469.

of sub-flow^ 467.

riparian proprietors, among, 466.

riparian rights, procedure, 511.

riparian rights, when not permanent, 469, 486.
APPROPRIATION. See Table of Contents.

how made. See Method of Appropriation.

method of appropriation. See Method of Appropriation.

absolute property, 12, 65.

acts constituting, 209.

against riparian proprietor, 115.

appropriation and common law, conflict, 8, 405 et seq.

and riparian rights, compared, 122, 529.

as confined to public land, 85.

as grant from United States, 447.

attacks on law of, 8, 14, 20, 30, 34, 99, 158.

borrowed from California, 2, 6.

by canal company, 213.

by reclamation service, 672.

by riparian owner, 149.

by prescription, 183.

certificate of, 223, 224.

compa^d with Mexican law, 3, 4.

compared with mining law, 17.

completion of. See Completion of Work.

constructive, 183.

definition of, 129.

distinguished from condemnation, 401.

distinguished from estoppel, 385.

distinguished from prescription, 150, 156, 369.

distinguished from riparian right, 343.

entirely new system, 12.

exclusive right, 6.

filings of maps not alone enough, 219.

from several streams, -122, 288.

fundamental principles, 426.

general throughout West, 58.

grant, theory of, 11, 25, 64, 67, 71, 96.

grant, theory of, rejected in Colorado, 71.

history of. Part I, Chapter I.

incor|K>real hereditament, 128.

judicial legislation, 18.

legal definition of, 195.

never to be denied, 50.

notice of appropriation does not constitute, 195.

notice of. See Notice of Appropriation.

of percolating water, 179, 589.

of surplus over prior riparian owner, 496.

original precedent for, 9.

periodical, 102.

priority by, repudiated at common law, 407, 408.

represents title, 408.

rested on necessity, 40, 43.

rested on statute, 51. See Part I, Chapters I, IL

rested on State law, 77.

settling on stream not, 186.

INDEX 917

[B«fereiic«t ar» to Pag«t.]

APPROPRIATION (Continued).
■ spread of doctrine, 20.
statement of doctrine of, 56.
States enforcing, 2.
temporary, 103.
tests of, 130, 282.
theory of, inconsistencies in, 92.
when complete, 193, 195n, 209, 212.
APPROPHIATOBS. See Successive Appropriators.
becoming riparian owner, 134.
consumer from company's ditch, 640.
independent inter se, 101".
poor men, appropriation by, 200. '

riparian owner as, 132. .

who can be, 130.
APPUBTENANCE. See Place of Use; Sale; Contracts; Easements, etc.
considered generally, 340.

ditch to water right, or vice versa, 232, 254, 344.
in irrigation, 343.
in part, 343.

pasinng on parol sale, 347.
right to flow of water, 127.
riparian right as, 440 et seq., 445.
shares of stock passing as, 622.
to government reservations, 136.
to mortgaged land, 344.
use by trespasser, 131, 344.
when not mentioned in deed, 341.
AQUA CUBBIT, ETC., 122, 406, 439n, 537.
ABGUMENTUM AD HOMINEM, 83.
AEID STATES. See Colorado Doctrine,
law of, 32, 66, 78.
States comprising, 33.
land patents in, 81.

separate law for arid parts of same State, 32, 42.
Texas, definition of arid portion of State, 42.
IIBIZONA.

law of, 44, 49, 69.
^EKANSAS ACT, 178.
ARKANSAS BIVEB, 90, 174.
VRRESTS. See Police Begulations; Criminal Law, etc.

by water officials, 697.
ARTESIAN WELLS. See Percolating Water, etc.
appropriation on public land, 163.
artesian belts. See Underground Be^ervoir.
artesian belt, statute regulating, 567.
waste from, appropriation of, 251.
water from, 211, 547.
lRTICLES of INCOBPOBATION. See Corporations,
necessity for filing of, 134.
contents of, 135.
RTIFICIAL,

increment to streams, 359, 360, 361, 506.
artificial flow.

appropriator 's right to, 123.
substitution for natural flow, 123.
artiflcial stream.

918 INDEX.

[Raforenoet ar» to Pages.]

AETIFICIAL (Continued),

duty to maintain, 248.
artificial uses,

in law of riparian rights, 458.
artificial water, 243.

manufacture of, 251.

ARTIFICIAL WATERCOUBSES.

generally, 175, 229.

appropriation of water from, 196.

distinguished from natural stream, 249.

ditch is, 229.

no riparian rights in, 247.

seepage from, 575. ^ \

water in, appropriation of, 247.

water in, generally, 233.

water in is private property, 423.

water in is personal property, 238, 425.
ASSAULT AND BATTERY, 330.
ASSESSMENTS. See Taxation.

of irrigation districts, 649.

of water users associations, 659.
ASSIGNMENT.

of permits, 220.

of contracts, 335.

See Sale.
ATTORNEY GENERAL.

suit by, on navigable stream, 168.

suit by, to establish private water rights, 74, 607.
AUSTRALIA, 48.
AVULSION, 517.

BACKWATER, 446, 509n.

BALANCE OF CONVENIENCE. See Injunction..

as defense to injunction, 316 et seq.

as influencing preliminary injunction, 319.

hardship on public, 319.
BANKS OF STREAM. See Bed; Channel, etc.

need not be unchangeable, 162.

altitude of, as affecting riparian right, 475.

of slough, 164.

overflow of, 164.

BED OF STREAM. See Channel; Accretion, etc.
as foundation of riparian right, 431.
jurisdiction over, 90.
navigable streams, title to, 451.
not riparian land, 474.

ownership of, as conferring riparian rights, 438.
pipes in, 539.
reservoir in, 121.

state owns, on navigable streams, 168.
straightening is appropriation, 204.
title to, 10.

title to, navi^ble streams, 435.
title of riparian proprietor, 431.
variations in, 162.

INDEX. 919

(B«f«reiie«s an to Paget.]

BENEFICIAL USE. See, also, Non-user; Actual Applieation, etc.

bansy measure and limit of right of appropriation, 50.

injunction mast be based on, 313.

limits appropriation, 101, 263.

natural variations in, 267.

necessary element in appropriation, 65, 104, 213, 642.

necessity for, in prescription, 377, 378.

specified in decree, 329.

theory of, 23.

what is, a question of fact, 266.

when decree must be based on, 614.

when injunction must be based on, 267.
BENEFICIAL PUBPOSE. See Purpose of Appropriation.

what is, 196.

necessary ui appropriation, 195. *

dual intent, 196.
BLACKMAIL, 314n.
BLACK8T0NE, 120.
BLAZING TREES, 201.

BOABD OP IBBIGATION. See Administration; Adjudication of Prioi:^tie8;
Superrision, etc.

jurisdiction of, 602 et seq.
BOARD OF SUPERVISORS. See Supervisors.

discretion in organizing irrigation district, 649.

rate regulation by, 637.
BOG.

. whether watercourse, 162.
BOILERS,

use of water in, 285.
BONA FIDE PURCHASER. See Purchaser with Notice.
BOND.

for damages, indemnity, 18, 317.

for diligent work, .222.

in lieu of injunction, 321.

of county for irrigation construction, 171.

of irrigation district, 649.
BOUNDARIES. See Bed of Stream.
BRACTON, 234, 418, 440.
BRANCH FLUME.

use of, 288.
. building of, 281.
BREAK.

of ditch, non-user from, 354.

in ditch, damage from, 256.

BRIDGE.

backing water, 509n.
BRITTON, 418n.
BURDEN OF PROOF. See Presumption.

in recapturing water from stream, 360.

of abandonment, 327, 352.

of adverse use, 328.

of appurtenance, 341.

of injury to appropriator, 299.

of injury from change of use, 283.

of materiality in pollution, 301.

of payment of taxes, 382.

920 INDEX.

[Raferenoei are to Pagii.]

BURDEN OF PROOF (Continued).

of permission in advene use, 379.

of prescriptive right, 370, 381.

that lands are public, 141.
BY-LAWS. See Corporations.

CALIFORNIA.

admission into Union, 77, 178.
appropriation, attitude of court, 531.
appropriation on private land in, 159.

conflicts in, between appropriator and riparian owner, 112.
^rly conditions in, 16, 23, 28.

expressions in, inconsistent with Lux' v. Haggin, 93.
grant theory of law of, 17, 40, 59, 63, 102.
hydraulic mining in, 304. ,

irrigation in, 29, 34.
. never a territory, 61.
organization of State government, 6.
Political Code.

section 3446, construed, 178.
riparian rights in, first application of, 14.
riparian rights in, 35, 39.

See Riparian Rights,
private lands in, 39.
statutes. See, also, Part VI, Statutes.

absence of recent, 28, 48.

adopting common law, 12, 61.

adopting custom^ of miners, 12.

defining water right, 246.
« Indemnity Act, 18.

Possessory Act, 18.

Practicis Act, 8.

Revenue Act, 11.

reclamation districts, 179n.

Wright Act. See Irrigation Districts.
Civil Code, adoption of, 27.

before the code,

diligence, how defined, 189.
doctrine of relation applied, 209.
notice of appropriation unwritten, 189.

declaratory chiefly, 39, 189.

prospective operation, 39.

scope and purpose of, 184.

whether confined to public lands, 142, 143.

section 1410 construed — 161,177.

1411 construed-— 345n, 365.

1412 construed— 284.

1413 construed — 359 et seq.

1414 construed — Chapter III, Part I.

1415 construed— 190 et seq., 284, 296n.

1416 construed— 200 et seq., 202.

1417 construed— 204.

1418 construed— 210.

1419 construed— 184, 364.

1421 construed— 191.

1422 construed— 38, 39, 116n.

INDEX. 921

[Saforences ar« to Paget.]

CALIFORNIA (Continued).

1422 repealed, 39.
1468 construed, 335.
842 construed, 142.
552 construed, 246, 638.
CAMTNETTI ACT. See Mining Debris.
CANAL.

injury to, 300.
CANAL COMPANY,

appropriation by, 213.
CANYON.

water in, appropriation of, 161.

right of way through, 227.
CAPACITY OF DITCH.

appropriation as measured by, 57, 102, 127, 199n, 262.

customary measurement of, 277.

decree based on, 329.

how determined, 263.

measurement of, when specified in contract, 334.
CAPITAL.

lack of, as affecting diligence, 200.
CABE. See Negligence; Diligence, etc.
CABEY ACT, 54.

water right under, 662.
CABBIEBS. See Public Service.
CATTLE. See Watering Stock.

drowning in ditch, 256.

fouling water, 509.

polluting ditch, 256n.

pollution injuring, 302.

trampling ditch, 256n.

wallowing in water, 268.
CAUSES OF ACTION. See Action; Suit; Pleading, etc.
CEMETEBY,

pollution of waters by, 304.
CEBTAINTY. See Decree.

CEBTIFICATE OF APPBOPBIATION, 223, 224. See Method of Ap-
propriating; Adjudication of Bights, etc.

of water right, sale of, 333.

on adjudication of right, 601, 606.

place of use named in, 293.
CHANGE OF PLACE OF USE. See Appurtenance.

by trespasser, 131.

in California, 190, 191.

of artificial watercourse, 249.

of waste water 249 253
CHANGE OP POINT OF DIVEBSION. See Point of Diversion.
CHANGE OF PUBPOSE. See Purpose of Use.

power to irrigation, 296.

mining to irrigation, 296.

irrigation to city supply, 297.

domestic use t6 irrigation, 297.

irrigation to storage, 297.
CHANGE OP USE.

general rules of, 280, 285.

burden of proof of injury from, 283.

consent to, 283.

922 INDEX.

[BtfertnoM are to Pafst.]

CHANGE OP USE (Contimied).

increasiiig draft on river, 284.

inerearing waste, 267.

of ditch, 208, 231.

of pipe-line, 254.

of preliminary, ditch, 192.

on sale of water right, 294.

See Sale.
CHANNEL. See Bed; Banks, etc.

appropriator 's property in, 121.

dry, not riparian propriator, 449.

formation of, 162.

natural change of, right to bring back, 123.

necessary to watercourse, 161, 162, 166.

need not be always full, 162.

of interstate streams, 172.

river abandoning, on public land, 122.

sale of, 121.

shifting of, 517.

use of by many appropriators, 121.

usually dry, chance flow in, 162.

wrongful change io^^ 101.
CHARACTER OF USE, .282.

See Purpose of Use.
CHATTELS. See Personal Property.
CITIZENS. See Aliens; Appropriators, etc.
CITY. See Public Service, etc.

as appropriator, 134.

as riparian proprietor,' 249.

right of way for, 226.

water plant of, sale of, 135.
CIVIL CODE OF CALIFORNIA. See California.
CIVIL LAW. See Mexican Law.

•common law borrowed from, 417.

considered generally, 414.

definition of riparian land at, 479.

French law, 415.

grant by riparian proprietor under, 446.

irrigation at, 465.

of surface drainage, 175, 176n.

percolating water, 575.

**pubHoi juris" defined, 420.

right to a ditch in, 231.

riparian rights under, 10, 414 et seq.

Roman law, 414 et seq.

Spanish law, 415.

water in pipes under, 423.
COAL MINING,

debris from, 303.
CODES. See California; Civil Code; Irrigation Codes; Legishition, etc.
COLLATERAL ATTACK. See Res Adjudicata.

on adjudication of Board of Irrigation, 603.

on decree adjudicating priority, 616 et seq.

on irrigation district decree, 649.

on rulings of State Engineer, 217.

INDEX. 923

[B«fereiie«t an to PagM.]

COLONIZATION COMPANY.

diligence of, 202.

non-user during colonization, 355.
COLORADO.

irrigation in, 83.

domestic use in, 105, 106.

first decision in, 42.

law of, 44, 66, 68.

legislation in, 34.

See, also. Statutes, Part Vl.

repudiation of common law, 43.

riparian rights in, 92, 105, 106, 187.

statute enforcing rights of landowner, 45.
COMITY between States, 174.
COMMENCING WORK. See Diligence.

time for, 222.

not alone an appropriation, 57.
COMMODITY.

when water is, 233.

tilings common, 414 et seq.

running water as, 234.
COMMON LAW. See Table of Contents; Riparian Rights, etc.

abrogation of percolating water, 556.

abrogation of, riparian rights, 79, Part I, Chapter n.

appropriation is in derogation of, 14, 24, 38, 81.

appropriation and, not blended, 12, 14, 15.

borrowed from civil law, 417, 418.

first application of, in California, 14.

history of, 405.

interstate common law, 169. .

irrigation, whether common law suitable, 8, 24, 30, 67.

of surface drainage, 175, 176n. . .

priority between wrongdoers, 408.

rejection of as si4>ported by statute of limitations, 83.

rejection of, 7, 66.

statutes adopting generally, 8, 45, 61, 70, 80.

statutes adopting, repeal of, 83.

statutes in derogation of, 17.

state, change of, sanctioned by Congress, 86.
COMPLAINT. See Pleading.
' allegations in, 326.

cross-complaint, 328.

separate counts, 326.
COMPLETION OF WORK. See Method of Appropriating.

necessary to appropriation, 203.

proof of, to State Engineer, 223.

sale before, 338.

time for, under irrigation codes, 223.

what necessary to constitute, 204>.
CONDEMNATION. See Eminent Domain.
CONFLICT OP LAWS. See Interstate Streams. '
CONFLICTING CLAIMS, priority between, 209, 210.
CONGRESS. See Statutes, Part VI.

act of.

admitting California to Union, 77.
against hydraulic mining 304.
construction of, acts of, 81, 82, 86.

924 INDEX.

[BtfwenoM art to Pacoi.]

CONGRESS (Continued)*

Carey Act, 54.

Desert Land Act 'construed, 81, 592n.

excepting water rights, 113.

National Irrigation Act, withdrawal of lands under, 654.

preserving water and ditch rights, 110.

prohibiting sale of homesteads, 332.

reserving rights. over patented land for government ditches, l&l

right of way, acts of, 137, 140. 145, 191, 226.

act of 1866— -meaning of vested and accrued right, 150.

act of 1866, obscurity of, 21, 22.

acts of 1866, 1870, Rev. Stats. 2339. 2340. See Part I, Chapters
I, II.
and public domain, 21, 62, 140.
assent of, to local law, 25, 81, 82.
legislation of inimical to riparian rights, 89.
legislation of, indeflniteness, 94.
power to legislate upon waters, 89.
ratification of State constitutions by, SO.
silence of Congress, 7, 16.
surrender of riparian rights by, 81.
CONSENT. See Acquiescence.

distinguished from estoppel, 383.
of landowner, to appropriation on his land, 151.
to change of use, 283.
to ditch building, 147.
to use of ditch, 205.
CONSTITUTIONAL LAW.

building ditches on private land, 145.

condemnation to enlarge a ditch, 207.

condemnation, necessity for notice and compensation, 148.

denial of priority unconstitutional, 106.

domestic use, how far can be preferred over others, 106.

due process required generally, 388.

due process of law, decree as, 311.

due process of law.

by State Engineer in permitting changes, 291.
due process, in serving summons, 608.
' eminent domain. See Eminent Domain,
filings void under unconstitutional statute, 220.
judicial powers on administrative officers, 218.
jurisdiction of United States supreme court, 173.
power of board of irrigation, 526.
primary disposal of public goods, 39.
prohibition of monopoly, 266.
prohibiting pro-rating, 108.
provisions declaring public use, 626.

provisions declaring waters property of State or of public, 74, 78.
provisions establishing priority, 45, 97.
provisions preferring and classifying uses, 106, 305.
rights acquired before adoption of, 107.
riparian rights, protection of, 39, 51, 52, 78, 470.
statutes partially unconstitutional, 50.
statutes, constitutionality of.

concerning change of use, 289.

concerning underground water, 547.

enforcing pro-rating, 645.

INDEX. 925

[B«f«r6BMt ar» to Pages.]

CONSTITUTIONAL LAW (Continued).

for adjudicating priorities, 601, 607.

• for loan of- water, 335.

irrigation district statutes, 56, 648.

statutes partially unconstitutional,. 50.

unconstitutionality of state constitution, 75.

use of interstate stream, 171 et seq.
CONSTRUCTION WORK. See Completion of Work.

must be completed diligently, 219.

prosecution of, under irrigation codes, 222.
CONSUMERS. See Public Service.

from distributors, as necessary parties, 307.
CONTEMPT.

violation of decree adjudicating rights, 609.
CONTINUANCE.

in prescription, 374.
CONTRACTS. See Public Service; Sale, etc.

considered generally, 332, 444.

assignment of, 335.

beyond capacity of water system, 307.

concerning ditches, 254.

concerning riparian rights, 444 et seq.

creating liens for rates, 335.

covenants running with land, 335.

damages for breach of, 634.

enforcing pro-rating, 645.

granting easements to consumers, 637.

granting water right creates a servitude, 244.

impossibility of performance, 333.

not create^ relation of landlord and tenant, 129.

of corporation prompters, 336.

power to contract, 332.

rights resting on, distinguished from public use, 634.

settling rights, 333.

subject matter, when personalty, 242.

to estimated capacity, 334.

with distributing company, 245, 633 et seq.

vis major or act of God, 259.

for developing water, 333.

for house supply in cities, nature of, 243.

for loan of water, 334.

for irrigation, nature and construction of, 243, 244.

for pro-rating, 109.

for sale, purchaser, change of diversion by, 307.

for water supply, specific performance, 324.
CONTROL, BOARD OF. See Administration; Board of Irrigation; Ad-
judication of Rights, etc.
CONVEYANCES. See Appurtenance; Contract, etc.

generally, 337.

right to, under contract of sale, 334.

statute of frauds and recording acts, 127.
CO-OWNERS. See Tenants in Common.
CORPORATIONS. See Public Service; Water Users- Associations, etc.

administering public use, 390.

adverse use against, 369.

application of, for permit to appropriate, 219.

appropriation by, 134.

926 INDEX.

[Btforenoes are to Pacoi.]

CORPOEATIONS (Continued).

articles of incorporation, filing of, 134.
contracts of, 135, 198.
filing with Secretary of Interioi', 226.

articles of, 55, 657.

as appropriators need own no land, 124.

by-laws enforcing pro-rating, 645.

by-law restricting use of water, 622.

consumers from, as appropriators, 135, 640.

consumers of, as necessary parties, 307.

director, appropriation by, 135.

declarations of officers binding company, 352n.

distributing water, 621.

eminent domain by, 390 et seq.

for trade or commerce, 238.

foreign, exercise of eminent domain, 402.

foreign, filing articles, 134.

furnishing water, rights conferred, 245.

in public service, 621.

irrigation, right of way for, 226.

irrigation districts. See Irrigation Districts.

mutual companies, 622.

need not own land to appropriate, 135.

notice to officer of, 377,

promoters, contracts of, 336.

rental rights. See Public Service.

right of way for, under act of Congress, 226.

stock, transfer of, 622.

stockholders, water rights of, 622.

stockholders as party to suit, 646.

stockholder, suit to enjoin corporation, 307. *

water users associations, organization of, 656.
CORPOREAL. See Incorporeal Hereditament.
CORPUS OF RUNNING WATER.

no riparian property in, 443.

not subject to private ownership, 120, 419.

property in. Part II, Chapter II.

when private property, 233.
CORRELATIVE RIOHT8. See Riparian Rights; Percolating Water.
COSTS.

in adjudicating priorities, 615.

increase of, by wrongful act, 101.

special statutes, 608.
COTENANT. See Tenants in Common.
COUNT. See Pleading.
COUNTY.

ditch in two counties, aetioii for, 811«
COURTS.

conflict between State and Federal, 173, 187.

Federal, adjudication of rights in, 610.

Federal, have jurisdiction of appeal from State Engineer, 223.

jurisdiction of, 132.

recourse to, must be left open, 291.

suit to change point of diversion, 289.

when of general jurisdiction, 323.
COVENANTS. See Contracts.

running with land, 254.

INDEX. 927

[Beferenoes ta% to Paffei.]

CRIMINAL LAW.

injnnction of crimes, 331.
fouling water, 330.
larceny of water, 331.
destroying appliances, 331.
police regulations, 331.

See Police Regulations,
pollution, 302.

CROPS.

early and late, 296.

injury to, 19.

measure of damages, 328, 586, 635.

CR088-B11.L.

defendant may file, 309, 310, 322, 328.

CROSSINGS.

ditch crossing ditch, 256.

CUBIC FEET.

equivalence in gallons or miner's inches, 279.

CUJUS EST SOLUM, ETC.

not applied to running water, 240, 430 et seq.

percolating water, 550 et seq.
CURRENT OP STREAM, 164.

CUSTOM,

allegations of in complaint, 327.

as foundation of common law, 406.

effect of, on law of appropriation, 150.

evidence of, upon waste, 266.

judicial notice of, 327.

of locality in measurement of water, 277.

customs of miners, 3, 84.

proof of, 8.

validity of, 25.

DAIRY.

pollution of stream by, 305.

DAM.

break of, 102n.

DAMAGES.

action for at law, 325.

at law, riparian right, 513.

after notice of danger, 260.

allegation and measure of, 328.

as requisite of adverse use, 380.

of breach of contract, 634.

from breaking ditches, etc., 256.

implied from diversion, 498.

irreparable, for injunction, 312, 313.

joinder of claim for, with injunction, 325.

measure of, percolating water, 586.

measure of, for pollution, 510.

necessity to show, in law of appropriation, 58, 299.

necessity to show, in law 'of riparian right, 487 et seq.

necessity to show, in law of percolating water, 572.

nominal, action for, 380, 494.

on eminent domain, 207, 388, 520.

928 INDEX.

[Scfer^neM are to Pac^*-]
DAMAGES (Continued).

seepage from ditch, 124.

special damage, riparian rights, 492.

treble, between tenants in common, 307.
DAMNUM ABSQUE INJUBIA, 306, 456.

in law of percolating water, 574 et seq.
DATE. See Priority; Relation, etc.
DEATH.

adverse use as affected by, 377.

license revoked by, 333.

water right passing on, 185.
DEBRIS. See Mining Debris; Pollution, etc.
DEBRIS ACT, 304.
DECAY. See Abandonment.
DECLARATORY DECREE.

in lieu of injunction, 491.
DECREE. See Adjudication of Priorities; Apportionment, ete.

considered generally, 329, 614.

based on riparian rights, 514.

binds only parties and privies, 308, 309.

declaratory decree, 507.

declaratory in lieu of injunction, percolating water, 574.

definiteness required, 320.

establishing irrigation district, 649.

granted on terms, 290.

molding of, 316.

quieting title on interstate streams, 172.

riparian rights, domestic use, 513.

when must be based on beneficial use, 614.
DEDICATION,

water devoted to public use, 625.
DEED. See Conveyance; Sale; Appurtenance, etc.

adverse use under, 377.

construction of, 342.

delivery of, 337.

faulty, as abandonment, 345.

necessity for, 385.

with warranty, 442.
DEFICIENCY.

apportionment in times of, 322.

See Preferences and Pro-rating.
DEFINITION.

''abandonment," 350, 355.

* * appropriation, ' ' 129, 195.

' * arid lands, ' ' 42.

* ' beneficial use, ' ' 265.

See, also, Purpose of Use.

''capacity of ditch," 263.

"completion of work," 204.

"developed water, "'544.

"diligence," 200.

"ditch," 231.

"dry season," 266.

"incorporeal hereditament," 443n.

"irrigation," 197.

"irrigating season," 267.

"land," 541.

Wat«r Bights — 59

INDEX. 929

[BcTcreneM sn to PagM.]

DEFINITION (Continned).
**miDer'B inch," 278.
''natural right," 438, 439.
' * percolating water, ' ' 548.

* * police power, ' ' 624.

* ' present right, ' ' 270n. •,

** private property," 422.

• • publioi juris,.' ' 420.
"riparian," 435.
"aecond-foot," 278, 279n.

' ' storm waters, ' ' 504, 505.
"sub-flow of streams," 535.

"waste," 265.

"water right," 235.

"waterway," 231.
DELAY. See Diligence,* Laches.

due to litigation,- 202.
DEPOSITION. See Method of Appropriating.
DESCENT.

water right passing by, 127, 339.
DESEBT LAND ACT.

appropriation under, 52, 142.
DETERIORATION. See Pollution.

DETERMINATION OF RIGHTS. See Adjudication of Rights.
DEVELOPED WATER. See Percolating Water.

contracts for, 333.

defined, 544.

use of, when added to stream, 360.

ihrtificial production of water, 246.
DIKES, 204.
DILIGENCE.

considered generally, 199 et seq., 271.

as affected by difficulty of procuring labor, 201.

as affected by lack of capital, 200.

as affected by sickness, 200.

a question of fact, 201.

defined by irrigation codes, 222.

defined in absence of statutes, 189.

failure of, as abandonment, 363.

in applying water to use, 271.

necessity for, 195n.

poor men, rule for, 274.

what constitutes, 200.
DIRECTOR OP CORPORATION.

appropriation by, 135.
DISCRIMINATION. See Public Service.
DISTANT LAND. See Place of Use; Riparian Land, ete.
DISTINCTION.

between ditch and water right, 232.

between intent and motive, 198.

between natural and artificial stream, 249n.

between surface water and natural flow, 176.

water and water right, 233.
DISTRIBUTION OF WATER. See Public Service.

coiporations in public service, 621.

consumers, as affected by adjudication proceedings, 610.
DISTRIBUTOR for tenants in common, 132.

930

[BcrcrcnoM Mt to PafM.]

DITCH. See Ar&fieial Watereonrse; Appurtenaneey ete.

generally considered, 229.

abandonment of, separate from water right, 352.

appurtenant to water right, 344.

beginning without posting notice, 194.

branch itches, 281.

break of, causing delay, 200.

built in distinct parts, 233.

change of, 285.
• changes in grade, 256.

change of line of, 287.

change of to pipNB-line, 286.

change of to fltkme, 286.

condemnation for, 148, 232.

contracts concerning, 254.

creation of right to, 231.

damage to, by sheep, 256.

decayed, an abandonment, 352.
^ definition of, 231.
-^distinguished from water right, 126, 232.

ditch crossing ditch, 256.

duty to fence, 256.

easements in. See Easements.

enlargement of another's ditch, 207.

enlargement of by condemnation, 392, 401.

existing ditches, use of, 205, 218.

filled with mud and silt, 124.

government ditches on private land, 231.

is right of way, 143.

joint use of, 255.

leaky, 267.

license to build, 143.

no riparian rights in, 247.

on private land, 114.

on private land, government ditches, 137.

on public land, 109.

preliminary base line, 192.

removal or obstructions from, 262.

repair of, 231, 256.

right of way for, 42.

right of way for, civil law, 147, 231.

sale of, whether carries water right, 254.

substitution of flume for, 317. *

support for, 250.

use of land crossed by, by landowner, 255.

use of water in repairing, 196.

water from. See Waste Water.

water In, appropriation of, 247.

water in, property in, 238, 423, 425. .

water necessary to repair of, 194.
DIYEBSION. See Actual Diversion.

an injury to real property, 127.

as completing appropriation, 128.

by enlarging ditches, 205.

damage implied from, 498.

means of. See Means of Diversion; Means of Usa.

necessary to appropriation, 204.

INDEX. 981

[BeferencM ftx« to Paffei.]

DIVERSION (Continued).

of stream to point beyond State, 173.

operation of, as notice, 219.

when ripens into appropriation, 213.
DOG IN MANGEB, 188, 264.
DOMESDAY BOOK, 294.
DOMESTIC USE. See Beneficial Use; Biparian Bights, etc.

change of, to irrigation, 297.

Colorado law of, 105.

decree, riparian rights, 514.

defined, 107.

preference to appropriators for, 105.

reservation of, on grant of riparian right, 444.

right of way for, 226.

riparian rights, decree based on, 513.

riparian use for, 105, 107, 454.
DBAINAGE. See Surface Water; Percolating Water.

abandonment of drained water, 357.

affecting percolating water, 580.

damaging riparian owner, 509n.

ditch for, not an appropriation, 196.

drainage water, use of, 250.

incidental to other use, 196.

into abandoned channel, 122.

of surface water, common-law and civil-law rules, 176.

of swamp lands, 178, 179.

surface drainage not watercourse, 165.
DBINKING.

a natural use, 454.
DBY SEASON, 103.

low-water mark in, 164.

non-user during, 354n.

riparian land m, 449, 474.

rivers dry in, 162.
DUE PBOCESS OF LAW, 78.

See Constitutional Law. .

constitutional requirements, 388.

in adjudication of rights, 608.

irrigation district, 651.
DUTY OP WATEB, 276.

acreage per second-foot, 276.

presumption as to, 266.

in Southern California, 276.

in Montana, Colorado, Idaho, New Mexico, Washington, Wyoming, 277.

in Utah, 276.

EASEMENT. See Natural Bights; Appurtenance; Ditch,
apparent, on sale of land, 337.
change of, 283, 286.

consumer's rights in company's ditch, 637, 643.
contracts granting, 637.
distinguished from natural right, 439.
ditch 18, 230.

equitable easements, 335n.
extent of, 227, 230.
extinguishment of, 444.

932 INDEX.

[BaferancM an to Paces.]

EASEMENT (Continued).

in gross, 34 In.
in public lands, 227.
joint use of, 255.
loss of, by non-use, 371, 372n.
negative easements, 355n.
proof of, under allegation of ownership, 326.
public, of navigation, 168.
use of land by landowner, 255.
water right called, 245.
water right of appropriation is not, 129.
EJECTMENT.

for ditch, 230.
for riparian right, 442.
of trespasser, 330.
ELEfcTRIC POWER,
use for, 108.
right of way for, 226.
public use, 399.
ELEMENTS.

light, air, and water, 419.
property in, 234.
EMBLEMENTS, 240.
EMINENT DOMAIN. See Public Use.
considered generally, 388.
by foreign corporation, 402.
condemnation suit, 402, 403.
damages on, riparian rights, 520.
enlarging existing ditch, 207, 208, 401.
for ditch, 232.

hearing and compensation, 389.
injunction pending condemnation, 522 et seq., 527.
navigation, improvement of, 451.
necessity for notice, 389.
necessity for taking, 207.
notice of appropriation and maps unnecessary, 401.

percolating water, 546, 563.

power plant, 399.

private enterprise, 400.

procedure, 401.

property already in public use, 402.

right of way for ditch on private land, 145.

riparian rights, during non-use, 521, 522, 525.

riparian rights, injunction, 527.

riparian rights, procedure, 519 et seq.

riparian rights, taking of, considered generally, 519.

strangers to suit, rights of, not material, 309, 310.

suit for condemnation' on posting notice, 202.

waiver of condemnation, 143.

what is public use, 390.
ENGINEERS. See State Engineer.

opinions of, 29.
ENGLAND.

irrigation in, 411.
ENLARGEMENT.

priority on, 225.

of acreage, 268.

INDEX, 933

[Bafennces are to Pages.]

ENLARGEMENT (Continued).

of appropriation^ 217, 262.

of ditch belonging to other owners, 206.

of ditch, condemnation for, 206, 207.

of mill, 268.

when not permissible, 283, 297.
EQUITY. See Injunction; Quiet Title; Specific Performance, etc.

apportionment of water in, 466.

bills in, 321..

estoppel in, 383.

executed parol license, 143.

jurisdiction of, under irrigation statutes, 603.
ESTATE OF DECEDENT.

administration of water right, 185.

non-user during administration, 355.

water right of, 339.
ESTOPPEL.

by deed, 338.

distinguished f rora acquiescence, 387.

distinguished from appropriation or prescription, 385.

distinguished from laches, 314.

generally considered, 383.

in use of waste water, 247.

judgment as, 513.

See Bes Adjudicata.

of riparian proprietor^ 516.

to use of waste water, 358.
EVAPORATION. See Seepage and Evaporation.

allowance for, 132.

loss by, 267, 268, 470.

salvage of. See Recapture.
EVICTION.

of trespasser, 344.
EVIDENCE.

custom as, 266.

declarations, 346, 352.

degree of, to prove natural conditions, 123.

expert testimony, 266, 327.

filings under void statute, 220.

in action for apportionment, 469.

of abandonment, 346, 351, 353.

of capacity of ditch, 262.

of claim of appropriation, 192.

of customs, 26.

of intention, 199, 352.

of lack of diligence, 200. •

of negligence, 258.

of prescriptive right, 370.

of sub-flow of stream, 536.

of waste, 266.

parol, of appurtenance, 341.

rebutting abandonment, 355, 365.

rental value of land, 328.

required of riparian proprietor, 511, 512.

should not be pleaded, 326.

testimony of farmers, 266.

value of crops as, 328.

934 INDEX.

[BcTwMieM ftx« to PaffBf.]

EXCHANGE. See Loan of Water.
EXCLUSIVE BIGHT.

appropriation gives, 58, 122.
EXECUTION.

sale of water right on, '337.

ditch subject to, 254.
EXPENSE.

as raising estoppel, 247, 383, 384.

FALLOW.

land lying, 294.

farming neighborhoods, 39D, 391.
PEDEBAL COUBTS. See Courts.

jurisdiction of, citizenship, 311n.

jurisdiction of, on interstate streams, 171 et seq.

removal to, 311.
PEDEBAL LANDS.

primary disposal of, 52.
PEDEBAL QUESTION, 4n, 311.

PEDEBAL STATUTES. See Congress. See, also, Statutes, Part VL
PEES OP STATE ENGINEEB. See Statutes, Part VI.
PENCING.

ditchowner's duty, 256.
PILINGS.

maps, etc., not alone an appropriation, 219.

and records under irrigation codes, 216.

under unconstitutional statute, 220.
FINDINGS.

must be specific, 322, 587.
FIBST IN TIME FIBST IN BIGHT, 158.
PISH.

appliances injurious to, 331.

larceny of, at common law, 239n.

property in, 237, 415, 423.

riparian right of fishing, 443.
PISHING.

law of, founded on civil law, 418.

appropriation to aid fishing, 197.
PIXTUBES, 240.
PLETA, 234, 418.
FLOATAGE.

public use, 397.

right of way for, 226.
FLOODS, 102n.

as act of God, 259.

damage from, 258.

riparian land in times of, 474.
FLOOD WATEB. See Storm Water.

drainage of, 196.

riparian rights in, 504, 505.

whether part of watercourse, 164.
FLOW.

necessary to watercourse, 161.

right to, principle of, 123.

right to, subordinate to use, 124.

periodical, 162.

INDEX 935

[BcTereiiMt am to PacM.]

FLUME. See Ditch.

branches of, 288.

change of, to ditch, 286.

necessary loss in, 267.

substitution of, for ditch, 317.
FOBCE.

as affecting adverse use, 380.

ejection of trespassers, 329.

use of, when improper, 314.
POBECLOSUBB.-

of lien for wate^ rates, 335.

of mortgage, effect on contracts, 336.

of mortgage, appurtenant water right, 344.
FOBEIGN COBPOBATIONS.

appropriation by, 134.
FOBEST BESEBVES.

notice of appropriation posted on, 192.

right of way over, 140, 226, 227.
FOBFEITUBE. See Abandonment; Non-use, etc.

distinguished from abandonment, 364.

for failure to comply with statute, 184.

for non-user for five years, 356.

for non-use, statutes governing, 367.

in contracts, 635.

of uncompleted appropriation, 364.

of completed appropriation, 364.

of land title, forfeits riparian rights, 449.

of priority by change of use. See Change.

of priority by parol sale, 347.

of water right, considered generally, 364.

suit to declare, 227.

under acts of Congress, 227.
F0BM8. See Part Vn.

water users aasociation.

articles of incorporation, 665.
by-laws, 667.

contract with Secretary of Interior, 675.
FOURTEENTH AMENDMENT, 388.
FRANCHISE.

distribution of water as, 627, 628.

forfeiture of, 628.
FRAUD. .

as affecting adverse use, 380.
FRAUDS, STATUTE OF, 186.

contracts within, 333.

parol contract not performed within year, 333.

parol license, riparian rights, 444.

part performance, 323, 333, 344.

parol sale generally, 345.

on sale, 337, 346.
FRENCH LAW, 175n, 415.

resembles common law, 418.

streams on public land, 428n.
FRESHETS. See Floods; Flood Waters.

water from, 166.
FURROWING LAND.

unnecessary before irrigating, 268.

936 INDEX.

[BcTtMBOM m to PafM.]

FUTUBB NEEDS.

appropriation for, 268.

enlargement of use, 57.

non-use statutes applying to, 369n.

GADSDEN PURCHASE, 2.

See Treaty.
GALLONS.

equivalence in acre-feet, 278.

equivalence in miner's inches or cubic feet, 279.

sale of, 243.
GABDEN.

appropriation for watering, 268.
GAS COMPANIES.

compared to water companies, 243n.

gas works, pollution by, 304.

gold, discovery of, 2, 23.
GOVEBNMENT CONTBOL, 6.
GOVEBNMENT DITCHES, 53, 231.

on private land, 160.
GOVEBNMENT BESERVATIONS. See Public Lands; Forest Beserve?,
etc.

abandonment of, 136.

as riparian proprietor, 137.

ditches over, 53, 191.

Indian reservation as riparian land, 449.

miscellaneous, 60, 135.

rights of, 87, 88.

right of way over, 137, 226.

waters needed for, and State legislation, 86.

water on, 64.
GBANT.

appropriation as vesting on, 71, 158, 159.

by riparian proprietor, 444 et seq.

by riparian proprietor, civil law, 446n.

for periodicaJ use, 102.

of land carries riparian rights, 441.

of right of way, construction of, 232.

of riparian right for months or days, 103.

presumption of, in prescription, 371.

presumption of, on public lands, 62.
GBASS.

irrigation to promote growth of, 197.
GBAZING, 19.

GBOUND WATER. See Underground Water.
GUADALUPE HIDALGO, Treaty of. See Treaty.

HABD8HIP.

as influencing refusal of injunction, 316.
HA WAIL

change of place of use in, 292.
HAY.

appropriation of water for, 197.
HEADGATE.

unnecessary aside from statute, 204.
HEALTH. See Crixninal Law; Pollution. See, also, California Statutes
in Part VL

INDEX. 937

[BcffemiMt ur* to P«fM<]

BIGHWAY.

pipe-line across, 287.

prescriptive rights on, 370.
HOMESTEAD.

appropriation of water on, 154.

appropriation after entry of, 117.

estoppel of claimant, 385.

sale of, before final proceedings, 332.

subject to ditches, 109.

under National Irrigation Act, 655.
HOTEL.

pollution of stream bj, 306.

use of percolating water for, 585.
HYDRAULIC MINING, 302, 303.
HYDRAULIC RAM, 285, 445.

IMPOSSIBILITY.

non-use caused by, 354.
IMPOUNDING.

mine tailings, 303.
IMPOUNDING WORKS.

for storm waters, 176, 506.
IMPROVEMENTS.

destruction of, 19.
INCH. See Miner's Inch.
INCIDENT. See Appurtenance; Parcel.
INCORPOREAL HEREDITAMENT.

appropriation is, 128, 644.

refined, 443n.

riparian right is, 442.

water right is, 422.
INCREASE.

annual increase of irrigation, 268 et seq.
INDEFINITENESS.

of decree, 329.
INDIAN.

appropriation by, 131 n, 197.

as riparian proprietors, 449.

sale of water right by, 333.
INDIAN RESERVATION.

right of way over, 140, 227.

thrown open to settlement, 141.

water rights of, 136.
INDUSTRY. See Purpose of Appropriation.
INJUNCTION.

general discussion, 312 et seq.

against permit-holder, 217.

against State Engineer, 217.

against crimes, 331.

against bad and leaky flumes, 267J

against mining debris, 302.

against pollution, 304.

against npn-riparian proprietor during riparian non-use, 507.

against water officials, 592, 596.

balance of convenience, 316.

balance of convenience between States, 175.

bond in lieu of, 321.

938 INDEX.

[BcTwMiMf ur* to PafM.]

INJUNCTION (Continued).

by parol grantee, 324.

by riparian proprietor, damage in, 51, 487 et seq.

by tenant in common, 307.

continuing injury, 314.

declaratory decree in lieu of, 491.

defenses to, 316 et seq.

distinguished from bill of apportionment, 512.

entry of, in proper book, 321.

hardship on public as influencing, 319.

in aid of condemnation, 320.

irreparable damage, 313.

irreparable damage, between States, 90, 175.

joinder of, with claim for damages, 325.

jury in, 327.

laches and acquiescence, 511.

making out right at law, 315.

mandatory, 315.

non-use, percolating water, 566.

on interstate streams, 170 et seq.

other wrongdoers as defense to, 310.

parties to suit, 646.

pending eminent domain proceedings, 522 et seq.

percolating water, in absence of damage, 565, 573.

peremptory, during riparian non-use, 507.

procedure, riparian rights, 510, et seq.

riparian rights, in absence of damage, 565.

summary of rules for, 321.

to aid speculation, 318.

to prevent prescription, 507.

to prevent recapture of waste water, 360.

to restrain board of supervisors, 179.

to vindicate riparian right, 493.

when must be based on beneficial use, 267, 313.
INJUBIA SINE DAMNO, 380.

under law of appropriation, 312.

in riparian rights, 500.
INJUBY.

from change of use, 282.

from loan of water, 335.
materiality of, 298.
INSOLVENCY.

as ground for injunction, 321.
IN8TBUCTI0NS TO JUBY.

on negligence, 258.
INSUBEB.

ditchowner is not, 256.
INTENTION OF APPBOPBIATOB. See Benefleial Purpose.

does not make appropriation, 199.
INTEBNATIONAL LAW. See Interstate Streams.
INTEBSTATE.

common law, 167.
INTEBSTATE STBEAMS, 168.

conclusions as to, 173.

diversion of, 170 et seq.

jurisdiction over, 170 et seq.

INDEX. 939

E:^>^T£BSTATE STBEAMS (Continued).

pollution of. 173.

riparian ngnt» on, 451.

use of, 170 et seq.
II^TEBEUPTION.

in adverse use^ 375, 376.
XSRIGATINQ SEASON.

defined, 266.
XRBIGATION.

ancient case permitting, 405, 412.

antiquity of, 69.

apportionment for, among riparian proprietors, 456.

appropriation for, 197.

as "natural want," 399.

at civil law, 416, 417, 465.

at common law, 46, Part 11, Chapter Y.,

damage from seepage, 585.

definition of, 197.

first Western case involving, 14, 36.

in California, 29.

in Mexican California, 3n.

increase of acreage, 57, 100.

law and, 29.

natural, from fiow of stream, 499.

natural sub-irrigation, 499, 500, 573.

of* non-riparian land at common law, 472.

permitted at common law, 410.

preference to use for, 105.

reasonable use for, at common law, 461.

use for. inheres in land irrigated, 125.

waste from, causing damage, 258.

waste seeping from another's, 248.

when a public use, 396.
lEBIGATION CODES.

change of use under, 290.

enactment of, 181.

failure to comply with in appropriating, 218. .

forfeiture under, 368.

method of appropriating under, 216.
IBBIQATION DISTBICT. (Wright Act.) See, also, Beclamation Dis-
tricts.

assessments, 649.

board of directors, discretion of, 652.

bonds, 649.

condemnation for, 391.

constitutionality of statutes, 648, 652, 653.

mandamus against, 649, 650.

organization procedure, 649.

practical operation, 653.

purpose of organization, 647.

sale of water right, 651.

States providing for, 53, 56.

suit by, to settle rights of landowners, 323.

taxable property, 650.

use of water beyond boundary, 650.

validity of bonds, 648, 649.
IBBIGATOBS, conflict with miners, 105.

940 INDBZ.

[BcrcrcnoM ur* to

ISLAND.

title to, 91.

rssuE.

joinder of, when necessary, 309, 310.

JOINDER.

of causes of action. See Action.

of causes of action for diversion and injury to ditch, 232.

of consumers in suit against company, 646.

of issue, 513.
JOINT TENANTS. See Tenants in Common.
JUDGMENT.

appropriation after, 202.

See Decree.
JUDICIAL LEGISLATION.

establishing forfeiture, 365.

establishing appropriation, 15, 18.

enlarging common law, 410.
JUDICIAL NOTICE.

of customs, 10, 15, 327.
JURISDICTION. See Courts; Federal Courts, etc.

action to quiet title, 511.

general or limited, 323, 616.

in rem, 608.

of board of irrigation, 602 et seq.

of courts in adjudicating priorities, 311, 616.

of courts on appeal from State Engineer, 223.

of Federal courts, 312.

of United States or State, 90.

of United States supreme court, 173.

original, of Federal courts, 312.

to settle rights on interstate streams, 172.
JURY. See Question of Fact.

abandonment is question for, 367.

in eminent domain, 390.

jury trial, 327.

non-use as question for, 365.
JUSTICE OF PEACE.

jurisdiction of, 126.

inrisdiction over water in pipes, 239.
JUSTINIAN.

Institutes of, 231, 234, 236, 414, 443.

concerning wild animals, 424.

LABOR ON WATER RIGHT. See Construction Work; Diligence, etc.

difficulty of procuring, 201.
LACHES, 320.

See Diligence; Injunction.

as bar to injunction, 314.

distinguished from statute of limitations, 314.
LAKES AND PONDS, 177.

appropriation of, 13, 24, 177.

depletion lowering surface, 101.

Lake Tahoe, 169.

riparian rights on, 452.

course of stream, 167.

underground, 546.

INDEX. Ul

[Bef^SMioM an to Pasif.]

LAND. See Grant; Mezicail Grant; Public Land.

amount of irrigable land, 199.

appropriation independent of, 124.

ditches not, 230.

does not include running water, 235.

land titles under Mexican law, 3.

meaning of term as including water, 430 et seq., 544.

ownership of, unnecessary to appropriation, 182.
LANDLORD AND TENANT.

adverse use against tenants as affecting landlord, 369.

landlord, suit by or against, 307.

lease as rebutting abandonment, 365.

offer of rent negatives adverse use, 377.

relation of, cannot exist in water rights, 129.

suit by lessee, 510;

tenancy in riparian right, 442.

tenant, injunction suit by, 307.
LAND OFFICE.

entry of land in, effect on riparian rights, 116.

filings in, 53, 191.

final proof in, 117.

right of way, filings in, 226.
LANDOWNER. See Settlers.

statute preserving water rights of, 45.

use of land, by, when crossed by ditch, 255.

use of servient tenement by, 255.
LAND PATENTS. See Patent to Land.

excepting clause in, 111.
LANDSLIDE.

filling ditch, abandonment, 368.
LARCENY.

of water at common law, 239, 331.
LEAKAGE. See Seepage; Damage, etc.

caused by burrowing animal, 259.

from ditch, damage from, 257.

water escaping by use of, 248.
LEASE. See Landlord and Tenant.
LEGISLATION. See Statutes."

absence of, in origin of law of appropriation, 12.

adopting common law, 80.

and beneficial use, 50.

and riparian rights, 50.

before California code, 27.

by Congress. See Congress, Acts of.

changing method of appropriation, 181.

early legislation, 27, 45.

favoritism in, 50.

power to declare waters property of State, 78.

of State prohibiting extra State diversion, 173.

recent, 48.

special, granting wat^r rights, 72.

sanctioned by Congress, 26, 27, 49,* 50.

superior to customs, 27.
LESSEE. See Landlord and Tenant.

appropriation by, 131.
LEVEES.

along or across streams, 179.

942 INDEX.

[B^fcrtiiOM ftre to Pages.]

LICENSE.

appropriation as, 128, 208.

death, revocation b^, 333.

issuance of, under irrigation codes, 224.

from United States, 128.

parol, 324.
• parol, in equity, 143.

parol, executed license, 333.

parol, revocable, 333.

revocable under acts of Congress, 227.

to buUd ditch,. 143.

for water rates, 335.
LIMITATIONS, STATUTE OP, 337.

See Prescription.

estoppel distinguished from, 314.

how pleaded, 370.

statute of, in adjudicating rights, 613.

non-use for period of, 366.

period of, in various States, 374.

statute of, in adjudicating priorities, 615.
LITIGATION.

delay during, 202.

frequency of, 290, 322,

over appropriation, 34.
LIVESTOCK.

appropriation for, 227.

right of way for, 227.
LOAN OF WATEB.

ColoradD statute, 334.
LOCAL LAW.

assent of Congress to, 81.

right of riparian proprietor, 91.

sanctioned by Congress, 87.

when governs, 89, 90.
LOCATION.

of water rights for speculation, 195n.
LOS ANGELES.

pueblo right of, 4, 5.

water plant of, 135.
LUMBER.

floatage, 226.

MACHINEBY.

appropriation for, 104.
MALICE.

in appropriating streams, 198.

percolating water, 574 et seq.
MANDAMUS.

against irrigation district, 649, 650.

to compel delivery of water, 629, 631, 634.
MANDATOBY INJUNCTION. See Injunction.
MAPS AND FILINGS, 222.

filing, with Secretary of Interior, 226.

on application for permit, 219.

under unconstitutional statute, 98.

when statutes for, do not apply, 206.

when unnecessary, 218.

INDEX. 943

[B«ftr«]ie«f an to Pftgtt.]

MABBIED WOMEN.

appropriation by, 130.
MEANS OF USE, 229.
change of, 285.

faulty obstmetion enjoined, 267.
increase in cost of as affecting rights, 101.
of diversion, existing ditches, 206.
of diversion, immateriality of, 205.
statement of, in notice of appropriation, 190.
MEASUBEMENT OF WATEB. See Duty of Water; Second-foot; Miner's

Inch, etc.
by source as well as volume, 103.
in decree, how stated, 329.
measurement of water, 277.
measuring-box, order to install, 316.
MECHANIC'S LIEN, ditch, subject to, 254.

medium filwn aquae, 431.
METHOD OF APPBOPBIATING. See Notice; Diligence; Completion; Be-

lation; Beneficial Purpose, etc.; Prosecution of Work, etc.
acts necessary, 201.

actual diversion without following statute, 183.
actual diversion, without permit, 218.
beneficial purpose, 195.
by presumption, 183.
certificate of appropriation, 223, 224.
construction work, use of water in, 103.
constructive appropriation, 183.
decree of court, necessity for in California, 202..
essentials, 189.

in California, Kansas, Montana and Washington, 181.
license, issuance of, 224.
maps, filing of, 219.
notice of appropriation.

form of, 190.

contracts of, 191.

recording of, 191.

purpose of, 192.
obpect of statutes, 188.
original method, 181.
prosecution of work, 222.
riffht of way acts, 225.
filing with Secretary of Interior, 226.
rules for, summarized, 214.
statutes must be strictly complied with, 194.
under irrigation codes, 216.
under Federal statutes, 225, 226.
Wyoming method, 216.
MEXICAN GBANT,

riparian rights of, 4, 39, 69, 116.
MEXICAN LAW. See Acequia; Civil Law.
abrogation of, in California, 61.
acequias, 49.
concessions, 5.
in early California, 3.
Los Angeles, rights of based on, 4.
of use of waste wnter, 253.

944 INDEX.

[BtfMtnOM AM to PSfM.]

MEXICAN LAW (Continued).

power of gOYernment to reserve waters, 5.

pueblos, 4.

riparian proprietors under, 4, 5.
MILITABY RESERVATIONS.

rights of way over, 226.

waters on, 135, 136.
MILL.

appropriation for, 102, 104, 187, 282.

change of place of discharge of water, 253.

common-law use, 45S.

enlargement of, 100, 268.

on interstate stream, 172.

owner's duty of care, 257.

water right appurtenant to, 343.

MINE.

exhaustion of, as abandonment, 351.

pumping from, use of water, 250.

temporary shut-down, 356.

tunnel water, use of for irrigation, 360.

waste water from, abandoned, 357.
MINERAL WATER.

bottling for sale, 586.
MINER'S INCH.

converted to acre-feet, 276.

equivalence in cubic feet or gallons, 279.

equivalence in second-feet, 278.

indefinitenesB of, 191, 277.

measurement by, 102.

statutory definitions, 278.

use of, in notice of appropriation, 190.
MINGLING WATERS. See Recapture.
MINING. See Tailings, etc.

appropriation for, 104, 198.

as paramount industry in California, 585.

condemnation for, 392n, 396.

conflict with agriculture, 18, 107, 305, 319.

customs of miners, 23.

debris, coal mining, 303.

debius, damage from, 302.

districts, 6, 23.

hydraulic, legislation against, 304.
* mining rights, theory of, 17.

necessity for water in, 6, 24, 302.

on public land, 10.

percolating water, drainage of, 580 et seq., 583.

preference to, 20, 105, 305.

mines said to be ^^publici juris,** 421n.
' whether a public use, 390.
MINING CLAIM.

as riparian land, 449.

building ditch over, 147.

forfeiture of, 141.

location notices, 192.

parol sale of, 345.

riparian right of, 118.

subject to ditches, 109.

INDEX. 945

[BtfMtiiMt an to PagM.]

CINISTEBIAL.

State Engineer's powers, 217.
IINOR.

appropriation by, 130.
dTXTXJBE OP WATERS. See Recapture.
40L.L.ITEB MANUS IMPOSUIT, 329.
liONOPOLY. See Speculation.

avoided by law of appropriation, 188, 265.

regulation of, 627.
MONTANA,

law of, 37, 40, 92, 93.

duty of water in, 277.

riparian rights in, 170.
MOBTGAGE.

after-acquired property, 338n, 344.

ditch, subject to, 254.
MOBTGAGEE.

as party to actioi^ 306.

of company's plant, effect on contracts, 336.

priority of, 211.
MUDDYING STREAM, 302.

NAPOLEON, CODE OP, 416.
NATIONAL IBBIGATION ACT, 54, 55.

See Congress.
NATUBAL FLOW, 109.

appropriator's right to, 122.

artificial increase of, 359, 360, 362.

ceasing from natural causes, 123.

riparian right of, 488.

storm waters, 503.

surface water distinguished from, 176.
NATUBAL LAW, 237, 414.
NATUBAL BIGHT, 79.

meaning of term, 438, 456.

natural easements, 450.

riparian right, 554.
NATUBAL STBEAM.

property in corptu of water in, 234.

distinguished from artificial, 249n.
NATUBAL USE.

of land, 256.

natural uses in law of riparian rights, 454.
NAVIGABLE STBEAM8, 167.

access to, necessary before use, 151n, 168.

appropriation on, 86, 167.

improvement of, 519.

injuries to navigation, 167.

navigability a question of fact, 168.

navigation, improvement of, 451.

navigation, importance of, 108n.

obstruction of, by mining debris, 304.

riparian rights on, 435, 436, 450.

title to bed of, 168, 435, 451.

Water Bights — 60

946 INDEX.

[Btftraieef an to Pftgot.]

NEBBASKA.

reference to domestic uses in, 106.

Adoption of Wyoming system, 51.

irrigation in, 28.
NECESSITY.

law based gn, 29, 43, 47, 66, 79, 145.

channel of stream as way of, 302.

in law of percolating water, 553.

right of way for ditch by, 143.

way of, 42, 302.
NEGLIGENCE. See Laches.

breaking ditches, 256 et seq.

no prescriptive right, 370.

notice of danger, 260.

not material in cases of pollution, 306.

rule of, 257.
NEVADA.

conditions in, 29.

early decisions, 37.

land patents in, 109.

statute adopting common law, 70.

non-riparian proprietor. See Biparian Land.

diversion by, 499.

grant to, by a riparian proprietor, 445.

injunction against, 494 et seq.

use, when adverse to riparian owner, 518.

use by, at common law, 17.
NONSUIT.

against appropriator, 195.
NON-USEB. See, also, Beneficial Use; Abandonment; Forfeitare.

considered generally, 353.

appropriator 's duty during, 265.

as affecting prescription, 374.

between tenants in common, 132.

by riparian proprietor, declaratory decree, 491.

distinguished from abandonment, 365.

distinguished from adverse use, 366.

fatal to appropriation, 213.

forfeiture for, 364 et seq.

for period of statute of limitations, 365, 366.

in law of percolating water, 566, 573.

injunction during, 267, 313.

loss of prescriptive right by, 371, 372n.

must be consecutive, 368n.

not affect riparian right, 515 et seq.

of decreed Tight, 617.

of right reserved on a grant, 445.

temporary, 104.

use by others during, 355.

when must be voluntary, 368.
NOTICE. See, also, Possession.

acts constituting, 189.

as preventing estoppel, 384.

bearing of, on negligence, 260.

constructive, from filings, 220.

diversion operating as, 219.

in adverse use, 373, 376.

INDEX. 947

[Btfereneat are to Pagti.]

NOTICE (Continued).

of change of place of use, 293.

of change of use, publication of, 291.

purchaser with. I^e Purchaser with Notice.
NOTICE OF APPBOPRIATION, 7, 27, 190.

alone gives no rights, 195.

by United States Beclamation Service, 672.

duplicate notices, 191.

effect of posting, 192 et seq.

failure to post, 194.

interpretation of, 199.

liberally construed, 192.

posted on forest reserves, 192.

posting, whether binds appropriator, 186.

relation back to. See Belati<>n.

statements in, 191.

second notice not an abandonment, 351.

successive notices, 191, 210.

unnecessary in prescription, 378.

when unnecessary, 185.

writing when needed, 189.
NUISANCE.

abatement of, 313, 315.

action for, 325.

civil and criminal, 331.

dam as, 104.

hydraulic mining, 305.

injunction against, 315.

jury trial in, 327.

measure of damages, 328.

pollution as, 304, 510.

priority or prescription, 305.

public, no prescriptive right, 370.

public, percolating water, 567.

■

OCCUPANCY. See Priority; Appropriation, etc.

of public land, rights conferred by, 118.
OIL.

locations^ abandonment of, 351.

pollution of streams by, 305.

water flowing f roVn wells, 196.
OFFICE FOUND, 130:

OVEBFLOW. See Flood Water; Storm Water; Surface Water; Negligence,
etc.

damage from, 25 7n.

' PARALLEL DITCHES, 193.
PABCEL. See Appurtenance.
PABENS PATBIAE, 312.
PABOL.

agreements, specific performance of, 323.

evidence in interpreting notice of appropriation, 199.

license in equity, 143.

See License,
license, 324.

See Lieense.
sale, 186.
sale, as abandonment, 363.

948 INDEX.

[BtfMtnoM an to Facet.]

PAETIES TO ACTION.

.consumera from company ditch, 646.
in eminent domain proeeedinga, 309.
in law of riparuin rights, 510.

in suit againat water officials, 307, 596.

in suit to change point of diversion, 290, 310.

in suit to enforce pro-rating, 109.
joinder of, 307, 325.

landlord as, 307.

lessee as, 307, 510.

mortgagee, 306.

necessary, riparian proprietors, 461.

prospective buyer as party, 307.

reversioner, 510.

strangers to suit, rights of immaterial, 154, 307.
PARTITION.

between tenants in common, 323.

of riparian right, 442.

of water rig[ht of appropriation, 131.
PASADENA.

water system of, 135n.
PA8TUBAGE.

appropriation of water for, 197.
PATENT TO LANDS.

how far conveys water, 62, 64, 71, 81, 113.

relates back to entry, 85, 116, 385, 476.

rights before issuance of, 117.

rights reserved and excepted, 138, 144, 160.

subject to existing water rights, 81.
PAYMENT. See Patent; Bates, etc.
PEACEABLE. See Prescription.

in adverse use, 376.
PENITBNTIABY.

use of water for, 459.
PEBCOLATING WATEB. See Sub-flow of Stream; Undersrroand Water.

action to settle right to, 321.

adverse use of, 376, 381.

American rule, 570.

appropriation of, 122, 146n, 584, 588 et seq.
• bottling for sale, 579n.

California cases, 551, 568, 570.

condemnation of, 403.

damage, necessity for showing of, 572.

defined, 548. *

degree of damage, 582.

difficulty of new rule, 587.

distant use of, 579.

distant use in absence o^ damage, 565.

distinguished from running water, 240, 434.

drainage affecting, 580.

English rule, 548, 584.

findings must be specific, 587.

high value of, 556.

injunction, refusal of, 527.

law of, distinguished from law of watercourses, 549.

list of recent decisions, 578.

malice, 574 et seq.

INDEX. 940

[BaferencM are to Pages.]

PERCOLATING WATER (Continued).

measure of damages, 586.

mine drainage affecting, 580 et seq.

mining regions, 583.

new rule compared to riparian rights, 588.

New York rule, 583.

non-use, declaratory decree, 492.

non-use, injunction during, 566, 573.

prescriptive rights in, 376, 381."

priority of use, 557, 558, 588 et seq.

puhlici juris, 568.

reasonable use of, 579.

reasonable use, generally considered, 572.

reasonable use, miscellaneous rulings, 585.

reasonable use defined, 577.

riparian rights in, 452.

sale of, 579.

source of stream, 167.

tributary to watercourse, 541.

underground reservoir, 564.

waste of, 667, 579.

water level, lowering, 564.

wells on public land, 590.
' worthless land, 564, 573.
PERCOLATIONS.

fed by stream, 544.

from stream, rights based on use of^ 188.

of waste causing damage, 257.

waste escaping by, use of, 248.
PERIODICAL.

appropriations, 102, 322.

flow, 162.

use among consumers, rotation, 631.
PERMISSION.

in adverse use, 379.
PERMIT.

application for, 219.

applicatir>n for, when unnecessary, 218.

application for, in practice, 225.

from board of irrigation af^ainst riparian owner, 526.

from debris commission, 304.

injunction against permit-holder, 220.

issuance of, 220.

necessity of State Engineer's approval, 219.

protest against issuance of, 220.

rejection of, 220, 221.

revocation of, for failure of work, 223.

sale or assignment of, 220, 338.

time limit in, 273.

to change point of diversion, 291.

to change use, when invalid, 291.

when void, 217.
PERSONAL PROPERTY.

water as, larceny of, 239.

water as, jurisdiction of justice of peace, 239.

water as, in taxation, 239.

water right is not, 126.

when water is, 121, 238, 425.

950 INDEX.

[BtfMMioM are to PagM.]

PERSONS.

who can appropriate, 130. '
PHANTOM OP RIPARIAN RIGHTS, 29, 69.
PIPES. See Ditches.

adverse use of, 377.

change of, 254, 286, 287.

delivery of water by, 243n.

grant for, dimensions, 254.

in springs, 560.

must not be defective, under license, 254.

.size of specified in notice of appropriation, 191.

substitution of, for ditch, 317.

use in, 267. , .

water in, is private property, 423.
PLACE OP APPROPRIATION.

immateriality of, 281.
PLACE OF DIVERSION. See Point of Diversion.
PLACE OF USE.

appropriation independent of, 124.

change of, 291.

See Appurtenance.

change of, as affecting waste, 357, 358.

change of, by trespasser, 344.

change of, notice of, 293.

change of on sale of water right, 294.

change of, statutory restrictions, 293.

immaterial in prescription, 378.

need not be alleged in complaint, 327.

statement of in notice of appropriation, 190, 191.

statutes restricting, narrowly construed, 282.

iknmateriality of, appropriation, 130, 182.
PLACER CLAIM.

location of, not an appropriation, 187.

muddying stream, 301.

riparian rights of, 187.
PLEADING.

considered generally, 325.

by riparian proprietor, 511, 512, 514.

damages, allegation of, 328.

early common law, 405.

of injury to others, 335.

prescriptive right, 370.

statute of limitations, how pleaded, 370.
POINT OF DIVERSION.

double point of, 288.

change of; general rules, 288.

change of, action for, defense to, 310.

change of, by consumer from corporation, 645.

change of, by holder of contract of purchase, 307.

change of, permit from State Engineer, 291.

change of, special Colorado procedure, 289.

change of, suit for, 613.

change of, suit for, cannot pass on abandonment, 352.

may be on private land, 159.

notice to be posted at, 190..

on forest reserve, 192.

on one's own land, 151.

INDEX. 951

[BtfMtBOM an to Pagtt.]

POINT OP DIVEBSION (Continued ).

on pnblie land, 139.
proper location of, 281.
when cannot be changed, 283.
where permissible, conclusions as to, 159.
whether must be on public land, 142, 143.
POISONING WATEB, 330.
POLICE POWER.

adjudication of rights, 600, 607.
defined, 624.

regulation under, 49, 74, 592.
transcends property rights, 90.
POLICE EEaULATIONS.
on interstate streams, 171.
under irrigation codes, 331, 595.
POLLUTION.

a question of fact, 303,

general rules, 301.

by riparian proprietor against non-riparian proprietor, 445.

in particular cases.

sewage, 304.

cemetery, 304.

gasworks, 304.

mining, 304, 305.

oil-wells, 305.

dairy, 305n.

sawmill, 305n.

hotel refuse, 306.
injunction against, 304, 313, 316.
injuring cattle, 302.
injuring riparian proprietor, 509.
measure of damages, 328.
not sanctioned by priority, 107.
of ditch by cattle, 256n.
of interstate stream, 173.
of underground water, 306.
priority or prescription not sanction, 304.
POND. See Lakes.

source of watercourse, 63.
surface water in, 165.
POSSESSION. See Possessory Bights,
appropriation is based on, 182, 195.
of land, necessity for in appropriating, 182.
of water right, what constitutes, 182.
relinquishment of, 350.

title enough against wrongdoer, 218, 308, 408.
what constitutes possession- of water right, 209.
POSSESSORY RIGHTS. 0ee Public Land,
appropriation is, 182.
converted into absolute title, 12.
loss of, 141.
nature of, 128.
parol sale of, 344.
recognition of, by Congress, 23.
sale of, 332, 337, 363.
POSTING NOTICE. See Notice of Appropriation.

952 INDEX,

[BtfwrtneM an to PafM^]

POWEB.

appropriation for, 198, 220.

common-law use, riparian rights, 458.

right of way for, 226.

use for, changed to irrigation, 296.
PRACTICE.
PEAIBIE8.

depressions in, as watercourse, 165.
PBE-EMPTION.

abandonment of, 449.
PEEFEBENCES. See Pro-rating.

equality of pursuits, 19, 23.

certain uses preferred in irrigation codes, 99, 109.

to domestic use at common law, 454.

to pueblo, Mexican law, 4, 5.
PBELIMINABY INJUNCTION.

balance of convenience as influencing, 319.
PBESCEIPTION.

considered generally, 369.

adverse use of ditch, 250.

against corporation, 369.

against tenement affecting landlord, 369.

against riparian owner, 517.

against United States, 183, 382.

appropriation distinguished from, 156, 369.

between tenants in common, 131.

burden of proof of, 328, 370.

burden of proof of permission, 379.

by several claimants, 369.

claim of right, 377.

claim to continue pollution by, 304, 305.

color of title, 72, 377.

conclusions concerning, 382.

continuous, 374.

damage as element of, 380.

distinguished from non-use, 366.

distinguished from statute of limitations, 370n.

effect of, 519.

enlargement of prescriptive right, 519.

essential elements in, 373.

extent of, 372.

force or fraud, 380.

in absence of beneficial use, 313.

injunction to prevent, 312.

in part, 369.

interruption, 375.

invasion of right, chance to prevent, 379.

joint use, 255.

loss of, by non-use of prescriptive right, 371, 372n.

lower use not adverse. 380.

necessity for beneficial use, 377.

not acquired against United States, 157.

not appropriation, 183.

notice, necessity for, 373, 376, 377.

open, notorious, 376.

period, prescriptive, 374.

permissive use, 379.

INDEX. 953

[BtftrtncM m to PsfM.]

PBESCBIPTION (Continued).

place of atLverse use, 382.

pleading right by, 370.

presumption of grant, 371.*

priority of right by, 372.

proof of, 370, 371, 378, 379.

proof of under allegation of ownership, 326.

right acquired by, how lost, 366, 371.

right to percolating water, 563.

riparian rights not founded on, 406 et seq.

riparian owner's right of action to prevent, 499.

suit to prevent, 498.

taxes, payment of, 381.

time for, 366.

title passes by, 371.

to be negligent, 370.

to maintain nuisance, 370.

to use of waste water, 358.

upper and lower use distinguished, 517.

use of surplus not adverse to appropriator, 380.

use under void deed, 377.

when water enough for all, 313.
PBESSUBE. See Artesian Wells.
PBESUMPTION. See Burden of Proof.

as foundation of law of appropriation, ,16.

against permission in adverse use, 379.

against underground stream, 534.

of abandonment, 356.

of adverse character of use, 377.

of continuance of watercourse, 162.

of duty of water, 866, 276.

of grant, from lapse of time, 251, 371.

of grant on public lands, 16.

of injury from change of use, 284n.

of jurisdiction, 616.

of meaning of miner's inch, 278.

of negligence, on break of ditch, 257.

of wastefulness, 266.

that lands are public, 141.

that water right passes on sale of land, 341.
I'BIMABY DISPOSAL OF PUBLIC LANDS, 84.

See Public Lands.
PBIMABY USES.

at common law, 454n.

primary and secondary rights in Utah, 109.
PBIOBITY.. See Preferences and Pro-rating.

among consumers from company's ditch, 644.

between riparian proprietors, 484.

date of, on using enlarged ditch, 206.

division by time, 9d.

foicfeiture of by change of use. See Change.

forfeiture of, by parol sale, 347.

governs appropriators, d7.

in suit to change point of diversion, 289.

in use of surface water, 176n.

is property, 280.

loss of by parol sale, 345.

954 INDEX.

[BtfwtiiMf mn to PsgM.]

PBIOBITY (Continued).

not sanction pollution, 304.

of prescriptive right, 372.

of riparian owner, 149, 406.
PBIVATE LAND.

appropriation on, 64, 142, 151, 158, 159, 281.

ditch over, 19, 231, 389.

diversion on, 427.

government ditches on, 53, 160.

priority on, 410.

riparian rights of, 85.

streams on, 152.
PBIVATE PBOPEBTY.

when water is, 233 et seq.
PBIVITY.

between appropriators, 206.
PBOCEDUBE, Part I, section 195 et seq. /
PBOOF.

of completion of work. Sect Completion.

of application to use. See Actual Application.
PBOPEBTY.

absolute or qualified rights, 119.

definition of, 237, 414.

in water, 119, 120.

private, definition of, 422.

private, when running water is, 422.

of public or State, water declared, 72, 75, 78.

right of, 280.

rule of, 83.
PBO-BATING, 105.

See Preferences and Pro-rating.

among consumers from same ditch, 645.

constitutionality of statutes, 108.

contracts for, 109.

parties in actions to enforce, 109.

pro-rating deficiency, 105, 108.

when not required, 334.
PBCM9ECUTION OP WOBK.

rights pending, 193.
PBOTESTS.

against change of point of diversion, 290.

against change of use, 291.

against issuance of permit, 220, 224.

to Secretary of Interior, 226.
PUBLIC.

hardship on, injunction, 319.

water declared property of, 72.
PUBLICATION OF NOTICE.

of change of use, 291.

of application for permit, 220.
PUBLICI JUBIS. See, also. Property of PubliCi

defined, 419 et seq.

meaning of phrase, 121.

percolating water, 568.

public lands as, 62.

running water as, 452.

INDEX. 955

[BtfcraioM «TO to PagM.]

PUBLIC LANDS. See Government Reservations; State Lands; Gongrress,
etc.

acquisition of, by United States. See Treaty.

adverse nee on, 382.

appropriation on, 8, 112, 139.

appropriation restricted to, 9, 12, 13, 142.

channel of streams on, 121.

civil law, 416.

deposit of tailings on, 305.,

entry pf, 92. ' • .

entry of, under National Irrigation Act, 634 et seq.

extent of, 10.

forfeiture of rights on, 141.

naked occupancy of, 118.

no occasion for riparian rigAts on, 84.

ownership of. State, 23.

prescription on, 183.

presumption that lands are, 141.

primary disposal of, 76, 77, 84.

right of way acts, 226 et seq.

rights passing on grant of, 109,

rights of United States to flow of waters on, 86.

riparian rights of United States, surrender of, 81.

State title to, 10.

streams on, 64.

streams on, French law, 428n.

swamp lands, 177.

taxation of, 60.

usually taken up by poor men, 200, 274.

waters on, title of United States, 87.

waters on, 52.

wells on, 590.

withdrawal of, 53.
PUBLIC NUISANCE. See Nuisance.
PUBLIC OWNERSHIP OP UTILITIES, 49.
PUBLIC SERVICE.

abandonment of, 629.

adequate facilities, 631.

at common law, 623.

bonus for service illegal, 629, 635.

common carrier, 640.

company in, injunction aiding, 320.

compulsory service, 628, 641.

constitutional provisions, 626.

consumers as appropriators, 639 et seq. .

consumers as parties to actions, 646.

consumers, change of diversion by, 645.

contracts for supply, 633 et seq.

contracts beyond capacity, 621.

contract limiting duties, 635.

contracts granting easements to consumers, 637.

contracts made a lien, 636.

contract rights unreasonable or discriminating, 635.

discrimination, 621.

duties of, 628.

forfeiture of waterworks, 637.

irrigation companies public servants, 624.

956 INDEX.

[BtfMtnoM an to PagM.!

PUBLIC SEBVICE (Continued).

mandamus, 629, 634.

priorities among consumers, 645, 654.

rates, contracts fixing, 635.

rates, conflict between public and contract rates, 636.

rates must be reasonable, 631.

rate regulation, 631, 632.

rates, payable in advance, 620.

unreasonable demands, 624, 630.
PUBLIC SUPPLY. See Public Service.

appropriation for, 198.

condemnation for, 391.
PUBLIC USE.

available to general public, 391.

constitutional provisions, 593, 626.

distinguished from right resting on contract, 634.

electric supply, 397.

floating logs, 397.

injunction against, 527.

irrigation of private land, 390, 396.

mining, 390.

necessity for, in eminent domain, 388.

power plant, 399.

private enterprise, 392, 400.

public water supply, 391.

right of way for, under acts of Congress, 227.

sawmill, 397.

storage reservoirs, 396.

water appropriated to, meaning of appropriated, 628.

water dedicated to, 625.

what is, 390, 621, 622.

pueblo water supply, 4.
PUMPS.

effect of, knowledge of, 386.

excessive, 583.

riparian proprietor, taking by, 470.

wells requiring, 252.
PURCHASE.

appropriation is a right by, 130.
PURCHASER WITH NOTICE.

at foreclosure sale, 336.

contracts binding on, 335.

of easements, 338.
PURPOSE OF APPROPRIATION. See Preferences.

any purpose, 198.

change of, 296.

change of, on sale, 297.

discrimination between, 222.

immateriality of, 18, 282.

statement of, in notice of appropriation, 190.
PURSUITS.

equality of, 104.

QUALITY OF WATER. See Pollution.
QUANTITY OF WATER.

enough for all, no prescription, 313.

passing on sale, 121.

INDEX. 957

[BtfcNneM ure to PftgM.]

QUANTO^TY OF WATER APPEOPEIATED.

as measured hy capacity of ditch, 282.

beneficial use determines, 263 et seq.

how determined, 261, 262.

increase of, 100.

protection of, 300. ,

summary of rules governing, 279.

whole stream, 98.
QUAETZMILL.

appropriation for, 282.

injunction against, 316.

tailings from, 303.
QUESTION OP FACT.

abandonment is, 350, 355, 367, 368.

diligence, 201.

effect of percolation on stream, 543.

existence of watercourse is, 162.

injury from pollution, 303.

navigabUity is, 168.

non-use as, 365.

reasonable time, 272.

reasonable use by riparian proprietor, 458, 464.

sub-flow of stream, 536.

waste is, 266.
QUIETING TITLE. See Apportionment; Adjudication of Priority.

allegations in complaint, 326.

actions for, 321.

action for, determination in, of change of use, 290.

action for, where brought, riparian right, 511.

action, for, as for realty, 127.

cannot be by administrator, 127.

in aid of condemnation, 524.

jurisdiction on interstate stream, 173.

on interstate streams, 172.

parties to action, 646.

procedure on, riparian rights, 511.

special proceedings analogous to, 323.

suit by administrator for, 322.

to prescriptive right, 371.

to riparian right, place of, 436n.

when excluded by irrigation statutes, 609, 610.
QUI PRIOR EST IN TEMPORE, 11, 15, 96, 113.
QUO WARRANTO.

against irrigation district, 649.

RAILWAY.

as riparian proprietor, 446, 450.

embankment, abatement of, 315.

grant, forfeiture of, 154n.

railway lands, 109.
RAIN OR SNOW.

delay caused by, 200.

water from, 122, 165, 166, 238n.
RATES. See Public Service.

contracts with promoters for, 336.

lien for, 335.

95S INDEX.

BA VINES.

water Ib, 166.

SEAL ESTATE,
diteh is, 229.

percolating water ia, 240.
nmning water is not, 120, 234. 240.
water right is, 126, 322, 324.

water right distinguished from carpus of water, 236.
when water is personal property, 238.

REASONABLE TIME. See IMligence.

non-Qser, 354.
REASONABLE USE.

by riparian proprietor. See Riparian Rights.

of ondergronnd water. See Percolating Water.
RECAPTURE, 265.

and nse of waste, 359.

intent essential, 360.

of salvage or developed water, 361, 362.

procedure on, 359n.

RECLAIMING WATER. See Recapture.

RECLAMATION DISTRICTS, 56, 178, 179.

RECLAMATION SERVICE. See National Irrigation; Water TJsera AsKrti
tions.
appropriation by, 672.
influence of, oh law, 48, 54.
rights of, 89, 90.

RECORDING.

book of ''miscellaneous,'' 337.

certificate ot appropriation, 224.

notice of appropriation, 27, 190, 191.

notice of appropriation, necessity for, 185.

notice of appropriation, need not be verified, 191.

notice of appropriation, purpose of, 192.

recording acts, applied to water rights, 127.

records of State Engineer, 220.

sales, 337.

water right contracts, 638.
REFEREE. See Adjudication of Priorities.
REFUSE. See Pollution.
RELATING BACK.

doctrine of, applied, 154n, 275.

doctrine of, at what time applied, 273.

doctrine of, under irrigation codes, 224.

effect of, in appropriating water, 192.

how benefit of, secured, 189, 190.

in making appropriation, 183.

of land patent back, to entry, 476.

origin of doctrine, 208.

patent relating back to entry, 116.

rights in ditch relating back to stream, 244.
REMEDIES. See Action, etc.
RENT.

offer of, negatives adverse use, 377.
RENTALS. See Contracts; Bates, etc.
RENTAL RIGHTS. See Public Service.

change of place of use of, 295.

INDEX. 959

[BafoMiMt 9X9 to Paget.]

BEPAIB.

duty of, 259.

of chaimely 517.

of ditehee, 256.

right of entiy for, 330.

use of material for, on public lands, 227.

use of water for, 103, 144.
BEPEAL.

of statute, effect of, 40.
BES ADJTJDICATA.

concerning ditch^ 231.

decree adjudicating priorities, 611, 613, 615, 616 et seq.

decree as, on question of abandonment, 352.

decree as, concerning ditch, 231.

rights adjudicated by administrative officers, 603.
BES COMMUNES, 414 et seq.
BESEBYATION. See Government Beservations.

of water right on sale of land, 295, 341.
RESEBVOIB.

as nuisance, 104.

break or overflow, causing damage, 256.

change of, 287.

filings for, 226.

for storm waters. See Storm Waters.

in bed of stream^ 121. • * . •

property in water in, 233.

reservoir sites, 53.

underground reservoir, 545.

water in, as private property, 237, 423, 506.

w^en cannot be installed, 297.
BES IPSA LOQUITUB, 257.
BETUBN OF WATEB TO STBEAM.

not necessary under law of appropriation, 182.

to lower appropriators, 123.

between appropriators, 301.

between riparian proprietors, 470.
BEVEBSIONEB.

suit by, 510. i

BIGHT OF ACTION.

ioT injury of ditch, when accrues, 193.

when accrues between appropriators, 299.

when accrues to riparian proprietor. Part II, Chapter YII.
BIGHT OF ENTBY.

to make repairs, 256.

right of entry, 19.
BIGHT OF WAY.

acts of Congress, 226.

act of Congress^ March 3, 1891, 53.

arising by necessity, 143.

condemnation, 148, 388, 392.

ditch is, 230.

erection of saloon on, 330.

government ditches, 231.

over forest reserve, 140.

over government reservations, 137.

over Indian reservations, 140.

over private land, statutes granting, 144.

960 INDEX.

[BtfflMiMM ure to FifM.]

BIGHT OP WAY (Continued).

over private land, government ditches, 137.

over public lands, 191.

over public lands, filings in land office, 226.

reservation of, on Federal grants, 146.
RIPARIAN LAND.

conclusions concerning, 484.

acquisition of, from government, 111.

as affecting history of title, 477.

as affected by legal title, 475 et seq.

bed of stream is not, 474.

definition of, at civil law, 479.

extent of, 475 et seq.

flood plane of river, 474.

governmental entries, 476.

Mexican law, 5.

mining claim, 187.

non-riparian land, damage to, 514.

non-riparian lands, grant for use on, 445.

non-riparian, use on, 502.

non-riparian use by both parties, 484.

non-riparian, views of Professor Pomeroy, 502.

Oregon rule, 481.

parcels severed, 475.

parcel of, right is, 441.

purchase of contiguous land, 476.

question of fact in each case, 481.

reason of rule confining use to, 472.

receding from stream, 475.

settlement on, not an appropriation) 187.

shifting of, 485.

swamp as, 474.

use confined to, at common law, 472.

watershed rule, 479.

what is, must touch stream, 474.

where two streams unite, 481.

worthless, 494 et seq.
RIPARIAN PROPRIETORS.

against appropriators, 109.

and appropriators, when the riparian proprietor is prior in time 115.

and appropriator, priority governs between, 112.

appropriation by, 132.

diversion by, 470.

does not own the water, 443.

equality of, 453.

government reservation as, 137.

irrigation company as, 459.

joint diversion by several, 470.

Mexican law, 5, 416.

name borrowed from civil law, 418.

non-riparian, during riparian non-use, 507.

priority of use by one, 406.

railway as, 459.

rights of, in arid States, 396.

State as, 459.

subordinate to appropriation notice, 185.

subordinate to pueblo right, 4.

INDEX, 9S1

[BaDwanoM an .%• FifM.]

BIPABIAN PROPRIETORS (Contmued).

BUrplas over appropriator, right to, 112.
surplus water appropriated against, 88.
when right of, attaches, 114.
whether can be appropriator, 132.
who are, 449.
RIPARIAN RIGHTS. See Common Law.
abandonment of, 515.
abolition of by statute, 51.
accretion, 517.

action for vindication of, 489.
against subsequent appropriator, 476.
altitude of bank, 475.
and appropriation compared, 529.
apportionment of water, 466.
apportionment, procedure, 511.
apportionment, when not conclusive, 460.
appropriator of surplus over riparian needs, 496.
artificial uses, 458.

as affected by *^cuju8 est solum" maxim, 430.
^ as affected by declaration of State ownership, 74.
as depending on title to bed, 435.
at civil law, irrigation, 465.
avulsion, 517.
basis of, 427.

borrowed from civil law, 417.
bridge backing water, 509n.
change of crops, 469, 470.
civil law, 416 et seq.
classification of uses, 454.
compared to close borough, 5Q11L.
condemnation of, 519.
conflict over, 28.
correlative, 453.
custom of community, 459.

damage between riparian proprietors must be excessive, 490.
damage, when necessary, 487 et seq.
damage from non-riparian use, when necessary, 446,
date of accrued against appropriator, 117.
declaratory decree, 491.
definition of ** riparian," 435.
distinguished from appropriation, 186.
diversion by tunnel, 560.
domestic use, 454.
duck pond, 459.
early California decisions, 35.
equal apportionment, 469.
essence of, 424, 425.
exhausting stream, 455.
first Western ease enforcing, 36.
fishing, 443.

fundamental principles, 426.
grant of, 444 et seq.
history of. Part II, Chapters I, II.
how acquired, 441.
how lost, 441.
in artificial watercourse, 247.

Wftter Bight*— 61

M2 INDEX.

[Btf«MMM an t* FifM.]

BIPABIAN BIGHTS (Contimied).

in California, 39.

in Colorado, 92.

in ditch, 247.

in sub-flow of stream, 449, 537.

in swamp, 436n.

incorporeal hereditament, is, 422, 442.

increase of ose, 467, 469.

indefiniteness of, 485.

infringement of, can be set up only by injured riparian proprietor, 10.

injunction, 51 1.

interstate streams, 451.

irrigation, use for, 410, 461.

is property, 51.

lakes and ponds, 452.

land. See Biparian Land.

landlord and tenant, estoppel, 442.

loss of, considered generally, 515.

manner of use,. 470.

may be taken on eminent domain, 114.

may exist with appropriation in same person, 155.

See, also, Appropriator.

measure of, between riparian proprietors, 462.

modernness of, 408.

modification of, to permit irrigation, 410.

nature of, Part II, Chapters U, in.

natural flow, 488.

natural right, 36, 438.

natural usee, 454.

navigable streams, 449.

non-riparian use. See Biparian Land.

non-riparian use in absence of damage, 565.

non-use, declaratory decree, 491.

non-use does not affect, 515 et seq.

non-use, on condemnation, 525.

not based on ownership of bed, 451.

not created by use, 441.
' not exclusive right, 429, 490.

on interstate streams, 175.

ordinary and extraordinary uses, 454.

appurtenance, as, 441.

part and parcel of land, 441.

partition of, 442.

pass ipso facto on grant of land, 441.

penitentiary, 459.

permit from board of irrigation in derogation of, 526.

''phantom of riparian rights," 69.

pleading of, against appropriator, 497.

pollution, 509.
. primary and secondary uses, 454.

prospective or possible damage, when necessary, 494.

reasonable use, 453 et seq., 458 et seq.

return of surplus to stream, 470.

right of flow, 69.

riparian land. See Biparian Land.

rotation among proprietors, 467.

States upholding, 40.

INDEX. 968

[B^feMnets an to Faget.]

RIPABIAK BIGHTS (Contdnned).

State rejecting, 44.

Btatntes declaratory of, 93.

statntes rejeetingi 45.

storm waters, 503.

streams of certain width, 52.

under California doctrine, 410.

underground streams, 534.

usufructuary, 421 et seq., 443.

vested right, 114.

vindication of, action for, 493, 498.

violation of, gives cause of action, 501.

master enjoined, 464, 470.

Tvaters publici juri8, 429.

when subordinate to notice of appropriation, 211.

whole stream, 491.

width of stream, 52.

worthless land, 463.
BIVEBS. See Streams.
BGMAN LAW. See Civil Law.
BOOSEVELT.

policies of, 54, 92, 126.
BOTATION, 268.

among consumers, 630.

apportionment of riparian rights by, 467.

when not required, 834.
BULE OF PBOPEBTY.

rights dependent on, 24, 48, 83, 140.
BUNlaNG WATEB.

classed with light and air, 415 et seq., 419.

compared to wild animals, 424.

corpus n0t property, 419.

distinguished from percolating water, 234, 240.

not included in term "land," 235.

property in. Part 11, Chapter II.

statutes usually confined to, 161.

when becomes private property, 422.

8ACBAMENT0 BIVEB, 304.
SAGEBBUSH.

clearing of, 274.
SALE: See Appurtenance; Conveyance; Grant.

appropriation for, 198.

appurtenant ditches, 233.

by city, 135.

by tenant in common, 131, 132.

by trespasser, 131.

change of purpose of use on, 297.

change of use on, 293, 294, 295.

contract for, person holding may change use, 307.

diversion antedating, 337.

does not* revive abandoned right, 353.

formalities on, 337.

generally, 337.

in parts, 337, 339, 343.

injuring, others, 339.

injury by, to subsequent appropriators, 100.

964 INDKX.

SALE (Continued).

of abandoned right, 338.
of canal, reserving water right, 232.
of ditch and water right separately, '254.
of land, water right reserved on, 295.
of part of water right, 268, 334.
of permits from State Engineer, 220, 338.
of property devoted to public use, 629.
of right during acquirement, 202.
• of uncompleted appropriation, 338.
of waste water, 253.
of water right separate from ditch, 338.
of water right not of specific water, 121.
of water right within irrigation district, 651.
of water, when a sale of personalty, 343.
on execution, 337.

on foreclosure of lien. See Lien; Mortgage, etc.
operation of, 338.
parol sale generally, 344.
parol, part of performance, 344.
recording acts, 337.
reservation of water right, 295.
seal, necessity for, 337.
separate from land, 125, 295.
whei) complete, 337.
whether abandonment, 351.
writing, necessity for, 337.

SALOON.

erection of, on right of way, 330.
SALVAGE WATER. See Becaptura.
SANATORIUM.

use of percolating water for, 582.
SAN JOAQUIN RIVER, 167, 304.
SAWDUST.

clogging ditch, 300.

injury from, 302.
SAWMILL, 19.

pollution of stream by, 304.

public use, 397.

water for, 282.
SCARCITY.

appropriations in times of, 98,

SEA.

shores of, common, 234.

and seashore, 414.
SEAL.

necessity for, on deed, 337.

to certificate of appropriation, 224w

SEASON.

appropriations for, 103.

dry season defined, 266.

irrigating season, 267.

variation of humidity, 266.
SECOND-FOOT.

definition of, 279n.

duty of water per second-foot, 276.

equivalence in miner 's inches, 278^

INDEX 965

[BaftfMiMt an t* FifM.]

8ECRETABY OP INTEBIOR.

approval of ditch filings, effect of, 145.

approval of right of way, 226.
SEEPAGE.

allowance for, 132.

and evaj>oration, allowance for, 360n.

and evaporation, salvage of, 360, 362.

damage from, 256.

from irrigation into stream, recapture of, 363.

loss b^, from ditch, 124, 470.

prescriptive right to, 370.

waste escaping by, use of, 248.
SEPABATION.

of water and land, 125.
SERVIENT TENEMENT.

use of, by landowner, 255.
SERVITUDE. See Ditch; Prescription; Easement, etc.

contracts creating, 244.

on ditch, 232.
SETTLER.

diligence required of, 200.

notice of appropriation before settlement, 211.

on public land, damage to, 140n.

on stream not necessarily an appropriator, 186.

patent of, 116.

prior rights of, 12, 14, 35, 45, 53, 111.

right of, to appropriate on his own land, 159.

rights of. as riparian proprietor relate back, 85.

rights or, relate back to entry, 116.

statutes in Colorado allowing irrigation, 93.

subsequent to appropriation, 109.
SETTLING RIGHTS. See Quieting Title; Adjudication of Rights, etc.

action for, 321.

among riparian proprietors, procedure, 511.

suit -for, on posting notice of appropriation, 202.
SEWAGE.

injunction against, 304, 509.
SHEEP.

defiling stream, 330, 331.

trampling ditch, 256.
SICKNESS.

delay caused by, 200.
SIC UTERE TUO, ETC., 258.

applied to riparian rights, 440n.

applied to underground water, 561, 563.

in law of underground water, 554.
SILENCE.

as raising estoppel, 384.

silence of Congress, 16.
SLOUGHS, 163, 164, 274.
SLUICE MINING, 303.
SMELTER.

appropriation of water for, 195.
SNOW.

melting, causing damage, 259.
SOURCE OP STREAM.

lake, springs, etc., 167.

percolations, 167.

M6 INDEX.

[BtfMiMMM an to Fac*i<]

SOURCE OF STREAM (Continned).

* essential to watercoarse, 162.

what is, 16S.

necessity for, 166.
SOUTHERN CALIFORNIA.

duty of water in, 276.
SPECIFIC PERFORMANCE.

of contracts, 323.

of contracts with public service company, 634.

easements based on, 335n.
SPECULATION.

appropriation for, 198.

injunction refused, 318.

monopoly improper, 196.
SPRINGS, 163.

appropriator's right to, 122.

percolating water supplying, 561.

running water, 416.

source of stream, 163, 167.

supply of, 163.

water in, as property, 235n, 419.
SQUATTER.

possessory right of, 347.

right of, on public land, 118, 208.

riparian rights of, on public land, 449.
STAMP-MILL.

tailings from, 305.
STANISLAUS RIVER, 244.
STARE DECISIS, 108.
STATE.

admission of, into Union, power conferred, 91.

control of waters on public land, 64.

diversion to places outside of, 75.

equitable diversion of benefits between, 175.

legislative power of, 66.

ownership of mines, 60.

ownership of waters, 208.

ownership as affecting interstate use, 171.

plenary power of, over waters, 90.

prescriptive period against, 374n.

proprietary rights of, 61, 73.

riparian rights of, 45()n, 459.

.separate rules for parts of, 80, 327.

streams crossing boundary. See Interstate Streams.

suit between, 173, 174.

title of, to bed of navigable rivers, 436.

title of, to waterd, 63.

waters, property of, 72.
STATE ENGINEER. See Method of Appropriating; Permits, etc

appeal from, is judicial suit, 223.

appeal from, removed to Federal courts, 311.

authority of, 217.

bond required to, by appropriator, 223.

injunction against, 217.

limits onr authority, 217.

office of, 593.

INDEX. 967

[BtftrtaoM m to Pagvi.]

STATE LANDS.

appropriation on, 140.

riparian rights of, 116.

swamp lands, 141.
STATE LAW.

appropriation resting on, 89.

governs validity of appropriation, 88, 89, 173.

national policy and, 54.

State rights, 92.

when controls. 227.
STATUTE. See Part VL

adopting common law, repeal of, 83.

for making appropriation must be strictly complied with, 194.

for maps, filings, etc., 216.

governing change of nse, 289.

granting rights of way over private land, 144.

regulating tenants in common, 132.

when must be followed in appropriating, 183.
STATUTE OF FRAUDS. See Frauds, Statute of.

applied to water rights, 127.
STATUTE OF LIMITATIONS. See Limitations, Statute of.

as barring riparian owners, 83.
STEALING WATER. See Criminal Law; Larceny.
STOCKHOLDER. See Corporations.
STOCK PURPOSES.

use of water for, .303.

watering of, prescriptive right, 373.
STORAGE.

appropriation for, 196, 198.

public nse, 396.

of water, property in, 239.
STORM WATER. See Flood Water.

appropriator 's right to, 109, 122.

drainage from, 258.

diversion of, from riparian proprietor, 503.

impounding of, 176.

whether part of natural flow, 503.
STRANGERS TO SUIT. See Parties.
STREAM. See Watercourse.

appropriation of, several together, 199.

intermittent, 534.

interstate. See Interstate Streams.

joining lake, 452.

navigable. See Navigable Streams.
SUB-FLOW OF STREAM.

absence of surplus flow^ 123.

apportionment of, 467.

defined, 535.

injunction to preserve, 316.

part of stream, 537.

riparian rights in, 449.

separate rights in, 539.

surplus of, 541.
SUB-IRRIGATION.

appropriation based on, 188.
SUBSEQUENT APPROPRIATION, 100.
SUBSEQUENT SETTLER. See Settler.
SUBTERRANEAN WATER. See Underground Water.

908 INDEX.

IBMUmamB •!• to F«fM.]

SUCCESSIVE APPBOPBIATOBS, 58, 99.,

of waste water, 249.
SUCCESSOR IN INTEREST. See Sale.
SUIT.

judicial, appeal from State Engineer is, 223.

to declare forfeiture, 227.

concerning State property, 74.
SUMMER.

streams drying in, 162.
SUPERVISION. See Adjudication of Priorities.

comments of department of agriculture, 596.

headgate, measuring devices, etc, 595, 598.

police regulations, 595.

State Engineer, office of, 593.

State Engineer in California, 598.

water divisions, districts, «tc., 593.

water officials, compensation of, 596.

water officials, actions against, 596.

water officials in Oalifonda, 598.

Wyoming system, 591.
SUPERVISORS, BOARD OF.

petition to, for formation of reclamation district 179.
SUPPORT.

lateral and subjacent, for ditch, 256.

of stream from ground water, 538 et seq.
SUPREME COURT. See United States Supreme Court.
SURFACE WATER.

appropriation of, 175.

as watercourse, 165.

drainage of, 176.

flood waters, 164.

in pond, 165.

reaching channel, impounding of, 176.

source of watercourse, 163.
SURPLUS.

appropriation of, 52, 102.

between appropriators, 300.

must not be wasted, 265.

uf sub-flow, 531.

over riparian needs, appropriator taking, 99, 115, 496.

return of, by riparian proprietor, 470.

riparian right in, over appropriations, 112.

use of, not adverse to appropriator, 380.

use of, when adverse to riparian owner, 518.
SURRENDER AND ADMITTANCE, 363.
SURVEY.

change of line, 192.

effect of, in appropriating, 202.
' in appropriating, 201.
SUTRO TUNNEL.

use of water from, 251.
SWALE.

as watercourse, 166.
SWAMP.

appropriation of, 162.

not a watercourse, 162.

no riparian rights in, 436n.

INDEX. M9

SWAMP (Continued).

stream emptying into, appropriation of, 177.
swamp lands, 141.
swamp lands belong to State, 177.
whether riparian land, 474.

TACKING.

by appropriators diverting at different times, 206.
TAILINGS. See Pollution.

deposit of, in streams, 302.

deposit of, on land, 305.

ditch for, 305.

from stamp-mDl, 305.

hydraulicking of, 304.

injunction against, 316, 318, 319.
TAIIi-KACE.

destruction of, 302.
TAXATION.

of ditches, 11.

of franchise to distribute water, 628.

of property in irrigation districts, 650.

of public lands, 60.

of riparian right, 442.

of water as personalty. 239.

place of, of riparian right, 436n.

water users associations, 672.
TAXES,

payment of negatives abandonment, 365.

payment of, pleading, in prescription, 370n.

payment of, in adverse use, 381.
TEMPORARY APPROPRIATIONS, 103.

during another's non-use, 273, 366.

pending another's work, 210.

temporary use, 193.
TEMPORARY STREAM, 250.
TENANT. See Landlord and Tenant.
TENANTS IN COMMON, 131.

adjudication of rights of, 610.

apportionment between, 323.

adverse use between, 131, 377, 380.

creation of, 337.

effect of non-use on right of, 132.

injunction by one alone, 131.

joint use of ditch, 255.

partition of right, 131, 442.

right of is real groperty, 127.

sale of rigill by, 131, 132.

statutes regulating, 132.

suits by, 307.

treble damages, 307.

unity of user, 131.

voluntary associations, 132.
TENDER.

as performance of contract, 333.
TENEMENT. See Easement.

•70 INDEX.

[Btf«r«BOM m to FafM.]

TBBBITOBY.

Federal legislative power over, 90.
legislative power of, 81, 88.

TIME. See Beasonable Time; Diligence, etc.

apportionment by periods of, 99, 322, 467.

appropriation measared by, 102, 366.

reasonable time, 353.
TITLE.

need not be deraigned in complaint, 326.

appropriation gives absolute, 12.
TBEATY.

Gadsden purchase, 2.

Guadalupe Hidalgo, 2, 59.

Louisiana purchase, 63.

TBEES.

destruction of, 313, 315.

TBESPASS, 19.

acquiring water right by, 427.

appropriation by, 145, 151, 154.

by tunnel, 566.

continuing trespass, 145, 372.

excuse for, 330.

injunction against, 145, 318.
TBESPASSEB.

appropriation by, 131, 344.

suit by tenant in common against, 132.
TBIAL.

delay during litigation, 202.

TBIBUT ABIES.

appropriator 's right to, 122.
of watercourse, 166.

TBUCKEE BIVBB.

State ownership of water in trust, 73.
TUNNELS. See Percolating Water.

developing water added to stream, 360.

near stream, 539, 559, 562.

riparian proprietor taking by, 470.

Sutro tunnel, water from, 251.

taking diffused percolating water, 565.

tapping definite underground stream, 533.

tapping sub-fiow of stream, 538.

trespass by, 566.

undermining springs, 561.

use of drainage water from, 250.

waste water from, abandoned. 253, 357.

water from, reclaiming, 196, 248, 359.

UNDBBFLOW. See Sub-flow.
UNDEBGBOUND BESBBVOIB.

considered generally, 545.

rights in, 566.
UNDEBGBOUND STBEAMS.

considered generally, 533.

INDEX. 971

[BcferenoM ure to PagM.]

UNDBBGBOUND WATER. See Percolating Water.

appropriation of, 179.

classifieation of, 533.
* creditors in Southern Califomia, 546.

connected with definite body of water, 533.

pollution of, 306.

power of legislation, 547.

sub-flow of stream.
UNITED STATES. See Congress; Public Lands, etc.

adverse use against, 382.

legislative i>ower of in territories, 90.

power of, to reserve water from appropriation, 47, 92.

prescription not acquired against, 157.

proprietary rights, waters on public lands, 46, 63, 8*1, 137.

proprietary rights, surrender of, to States, 81.

riparian rights of, 60, 81, 113.

riparian rights of, surrender of, 81.

silence of, 16.

statute of limitations against, 183.
UNITED STATES SUPREME COURT.

jurisdiction of, on interstate streams, 173.

original jurisdiction of, 312.

upon riparian rights, 37, 40, 46.

upon appropriation, 14, 46.

views of, on appropriation, 84.
UNREPRESENTED INTERESTS, 307.

riparian proprietors, 461.
USAGE. See Custom. ...

USE OF WATER. See Beneficial Use.

general limitations on, stated, 229.

uses, classification of, 105.
USUFRUCT, 73,

appropriation is, 119, 209.

in civil law, 236, 416.

definition of, 233 et seq., 421.

riparian right is, 443. *

UTAH, 44, 69.

duty of water in, 276.

primary and secondary rights in, 109.

riparian rights in, 92.

VALUE.

of water' per inch or gallon, 121.

of water right is capable of money estimation, 127.
VELOCITY.

irregularity of flow to appropriator, 300.
VENUE.

action to quiet title, 511.

action for diversion, ditch in two counties or States, 311.
VERBAL SALE. See Sale; Parol Sale.
VERIFICATION.

of notice of appropriation, 191.

of proof of completion, 223.
VESTED RIGHTS. See Constitutional Law; Due Process of Law.

appropriation is, 100, 106, 127, 203.

reserved in land patents, 110.

riparian right is, 114.

State Engineer's interference with, 217.

972 INBKSL

[S«ftMiieei aire to PftgM*]

VESTED RIGHTS (Contliraed).

Bupervisiqn of, 592.

under act of Congress, 227.

use of waste gives no, 248. *

except by grant or prescription, 249n, 259.

"vested and accrued ^ight,'' as used in Federal statutes, 25, 109, 110,
150.

when appropriation becomes, 193, 195n.
VIS MAJOR. See Act of God.
VOLUNTARY ASSOCIATIONS, 132.

WALKER RIVER, 169.
WARRANTY.

deed with, 442.
WASHINGTON, 40, .93.
WASTE. See Duty of Water. •

appropriation does not permit, 195.

by riparian proprietor, 134, 464, 470.

crime, 595.

prohibited by decree, 329.

what is, 265, 266.
WASTE WATER. See Drainage; Surface Water, etc.

abandonment of, 356.

appropriation of, 196, 247. '

change of place of abandonment of, 357, 358.

discharged into natural stream, 358, 359, 360.

from tunnel, when abandoned, 357, 358.

mine water, use of for irrigation, 360.

priorities attaching to, 253. ' ^

recapture and use of, 359.

sale of, 253.

use of, right to by estoppel or prescription, 358.

when waste water not abandoned, 360.
WATER. See Running Water j Percolating Water, etc.

and water right distinguished, 121, 419 et seq.

compared to light and air, 168.

corpus of, property in, 120.

distinguished from water right, 233.

necessity for, in mining, 302.

when personal property, 121.
WATER COMMISSIONERS. See Supervision.
* authority of, over consumers, 595.

injunction against, 290, 307.
WATER COMPANY. See Corporations; Public Service.

a common carrier, 246.

domestic supply by, 107.

nature of business of, 238.
WATERCOURSE. See Stream; Bed; Banks; Channel.

appropriation of, 161.

definition of, 165.

distinguished from easement, 439.

ejectment for, 442.

emptying into lakd or swamp, appropriation of, 177.

essentials of, 163.

existence of, a question of fact, 162.

fed by percolations, 543.

JNDEX 973,

[B«f«VMkc«i M» to Facti*]

WATEBCOUBSB (Contiimed).

intermittent flow, 162.

nature of, 433.

source of supply.

springs or surface water as source of supply, 163.

tributaries of, 166.

tributary percolations, 541.

^7hat constitutes 161
WATER DISTRICTS, ETC. See Adjudication of Priorities.

change of use from one to another, 290.
WATER DIVISIONS. .

districts, etc., 593.
WATERING STOCK. '

at common law, riparian rights, 454.

appropriation for, 57.
WATER LEVEL, 586.

See Percolating Water.
WATER PLANE.

lowering of, 586.
WATER RATES. See Public Service; Rates.

WATER RIGHTS. See Appropriation; Riparian Right; Percolating
Water.

defined, 235, 246.

distinguished from right to ditch, 126, 232.

in water users association, 661.

not an easement, 232.

represented by stock in corporation, 622.
WATERSHED.

bounds riparian land, 479.

change of use from one to another, 292.

of branch stream, 481.
WATER SUPPLY, PUBLIC. See PubUc Service; PubUe Use.
WATER USERS ASSOCIATIONS.

articles of incorporation and by laws, 657.

assessments, 659.

considered generally, 663.

contract with Secretary of Interior, 660, 675.

excess lands, 569, 673.

form of articles of incorporation, 665.

form of by-laws, 667.

purpose of organization, 656.

stock in, 658.

water right applications, 662.
WATERWAY.

definition of, 230.
WATER-WHEEL, appropriation for, 102n.

current-wheel, 204.
WATERWORKS. .

of city, 491.
WAYS.

of necessity, channel of stream as, 302.
WELLS. See Percolating Water.

artesian^ on public land, 163.

distinction between pumping and artesian, 252. *

water from, appropriation of, 196.
WHAT CAN BE APPROPRIATED, Part I, Chapter VL

974 INDEX. •

[Biftsraeu an to PasM^l

WHEBE AN APPEOPEIATTON CAN BE MADE, Part I, Chapter V. And

see Point of Diversion.
WHO CAN APPBOPBIATE, Part I, Chapter IV.
WHOLE STBEAM, 98.

appropriation of, 154.

appropriation of, objections to, 158.

riparian right to take, 491.

use of, at common law, 454 et seq.
WILD ANIMALS.

law of, 424n.

property in, 423.

mnning water compared to, 424.
W0BD6 AND PHBASE8. See Definition.

WOBEI. See Constmction Work; Diligenee; Method of Appropriation;
Beneficial Use, etc.

prosecution of, use of water in, 103.
WBIGHT ACT. See Irrigation District.
WBITINOS. See Frauds, Statute of.

notice of appropriation, 189.
WYOMING, 44, 67.
. early le^lataon, 27.

later legislation, 48.

legislation adopted in Nebraska, 51.

system of makuig appropriations, 216.

system of water regulation, 591.

3 blDS DbS DDb A17

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Full text of "Water rights in the western states. The law of appropriation of water as applied alone in some jurisdictions, and as applied together with the common law of riparian rights in others"

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