CHAPTER IX.

Nature and Extent of Rights to Waters Acquired in the Arid Region by Others Than Appropriators.

§ 271. Contents of Chapter.-In this chapter we will show, in the first place, how the common law rights of riparian owners are modified or extended in the arid region, especially their right to divert the water from natural streams and lakes and apply it to the purpose of irrigation; second, rights that had vested under and by virtue of a Mexican or Spanish grant before the southwestern portion of the United States was acquired by this country; and third, the nature and extent of rights in and to waters that may be acquired by prescription; also a discussion upon the nature and extent of rights acquired in subterranean waters in the arid west.

I. Rights Acquired by Riparian Owners.

§ 272. Appropriation by Riparian Proprietors—Western American Doctrine.-We have seen in a former chapter that under the strict common law rule of riparian rights, as recognized by the English authorities and also those of some of the eastern States, a riparian owner must so use the waters of the stream as not to materially diminish it in quantity or alter it in quality. Also, that most of the States formed from the arid region adopted as a part of their jurisprudence the common law of England. Hence it follows that there are two distinct systems or rules of law that govern the use of the waters flowing in the natural streams and lakes of the arid west-right to the use of the water by an appropriation of the same, and right to its use by virtue of an ownership of the soil over or adjoining which the stream runs. Of these two systems, one has its foundation in the equal rights of all the riparian owners upon the stream to the flow of the current in its natural or accustomed channel without material diminution in quantity or alteration in quality, regardless of any priority; and the other, which is almost the converse of the first has for its basis a right, by virtue of priority, and without any ownership of the soil being necessary, to appropriate and divert the water from its natural channel, without obligation upon the part of the appropriators to turn any of it back

1 See Ante Chapter III. Sections 57, 60.

into the natural stream; and if it is necessary for his purpose and within the extent of his appropriation, to use the whole of the water of the stream.

These two systems are antagonistic in their very foundation principles, and therefore antagonistic when it comes to the application of those principles. Had the Government of the United States taken as much pains in disposing of the waters of the public domain in as uniform and systematic a manner as it did of the public lands in the arid region, over which those waters ran, and the greater portion of which lands are absolutely worthless without the application of the water, the laws regarding water rights would not be in their present unsettled and inharmonious condition. But it is not the purpose of this work to debate what the law ought to be or what it might be, but what it is. And we will now proceed to discuss the general nature and extent of rights of riparian proprietors in and to the waters of the streams in those States in the arid west where the common law riparian rights are recognized and protected.

§ 273. Riparian Rights and Irrigation.-In some of the States and Territories of the arid west the common law theory of riparian rights has been entirely abolished; in others it has been modified to a great extent; and in still others it exists with but few modifications of the common law as it is interpreted by the Courts of England and the Eastern States.2 We have shown in a former chapters that although irrigation of the soil under certain circumstances was perhaps allowed under the strict application of the common law theories, it was so restricted by certain rules and restraints placed upon its practicable workings that those theories unmodified were found to be wholly inapplicable to irrigation as it is known and applied in the "Great Arid West." In that part of the country, in order to make the soil productive, there must be an application of the waters of the streams upon it. In order

1 See Part Second.

2 The exact difference and modifications will be discussed in a subsequent part of this work

under the rules of the various States.

3 Sections 68, So

to apply it to the soil there must be an actual diversion from the natural stream; and, owing to the previous soil, the hot sun and dry atmosphere, a certain loss or diminution in quantity must necessarily follow as a result of its application and use for irrigation. Hence, in all of the States and Territories in the arid west, even in those where the common law theories are most strongly applied to riparian rights, there has been a modification of these theories to this extent, that a riparian proprietor may take water from the stream and may make a reasonable use of it for purposes of irrigation.1 It is considered in the Pacific States and Territories that irrigation must be held in that climate “to be a proper mode of using water by a riparian proprietor," and the lawful extent of the use depends upon the circumstances of each particular case.2

§ 274. Same.-Authorities Discussed. In a case decided by the Ninth United States Circuit Court, Union Mill & Mining Co. vs. Ferris,3 Mr. Justice Hillyer, in rendering the opinion of the Court, said: "To lay down the arbitrary rule contended for by the defendant, and say that one proprietor on the stream has so unlimited a right to the use of the water for irrigation seems to us an unnecessary destruction of the rights of other proprietors upon the stream who have an equal need and an equal right. The more we examine the more we become impressed with the wisdom of the common law rule, that each proprietor may make a reasonable use of the stream, and that what that is depends upon the circumstances of the case. It will also be seen from the rule as before stated that the question of reasonable use is not to be determined solely by the wants of the party using the water—

1 Union M. & M. Co. vs. Ferris, 2 Sawyer, 176; Union M. & M. Co. vs. Dangberg, 2 Sawyer, 450; Ellis vs. Tone, 58 Cal. 289; Anaheim W. Co. vs. Semi-Tropic W. Co., 64 Cal. 185; Lux vs. Haggin, 69 Cal. 255; Swift vs. Goodrich, 70 Cal. 103; Coffman vs. Robbins, 8 Oregon, 278; Mud Creek Ir. Co. vs. Vivian, 74 Texas, 170; Learned

vs. Tangeman, 65 Cal. 334; Ferrea vs. Knipe, 28 Cal. 343; Peregoy vs. McKissick, 79 Cal. 572; Sharp vs. Hoffman, 79 Cal, 404.

2 Jones vs. Adams, 19 Nev. 78; 6 Pac. Rep. 442; Union Mill & M. Co. vs. Ferris, 2 Saw. 176; Lowe vs. Shaffer (Ore.), 33 Pac. Rep. 678.

32 Sawyer, 195.

whether the amount is reasonably sufficient for his own lawful purposes-but reference must also be had to the rights and needs of other proprietors upon the stream. 'The necessities of one man's business cannot be made the standard of another man's rights in a thing which belongs equally to both.'1

'No more definite rule can be safely laid down which will be of universal application. * * * Irrigation must be held in this climate to be a proper mode of using water by a riparian proprietor, the lawful extent of the use depending upon the circumstances of each case. With reference to these circumstances the use must be reasonable, and the right must be exercised so as to do the least possible injury to others; there must be no unreasonable detention or consumption of the water. That there may be some detention follows necessarily from any use whatever. How long it may be detained or how much it may be diminished can never be stated as an arbitrary or abstract rule."

And in a case decided by the Supreme Court of Nevada, Jones vs. Adams, the Court upon this subject observed: "When it is said that such use must be made of the water as not to affect the material rights of other proprietors it is not meant that there cannot be any diminution or decrease of the flow of the water; for if this should be the rule then no one could have any valuable use of the water for irrigation, which must necessarily in order to be beneficial be so used as to absorb more or less of the water diverted for this purpose. The truth is that under the principles of the common law in relation to riparian rights, if applicable to our circumstances and condition, there must be allowed to all, of that which is common, a reasonable use. If the judgment had been based upon the findings in relation to riparian rights it would therefore have been at least as favorable to respondent as it now is. The Court would not have given either party the right to absolutely divert any portion of the water away from the stream, nor allowed to either any definite quantity or portion

1 Citing Wheatley vs. Christman, 24 Penn. St. 302; Brace vs. Yale,

10 Allen, 447; Hays vs. Waldron, 44 N. H. 583-4.

2 19 Nev. 84; 6 Pac. Rep. 442.