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BRIEF AND MEMORANDUM #///
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RELATING TO w A &
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RIPARIAN AND WATER RIGHTS OF THE / / / /
FEDERAL GOVERNMENT AND OF
THE WARIOUS STATES
PRESENTED BY MR. NEL SON
FEBRUARY 7, 1910. –Ordered to be printed
WASHINGTON
GOVERNMENT PRINT ING OFFICE
1910


RIPARIAN AND WATER RIGHTS OF THE FEDERAL GOVERNMENT AND OF
THE WARIOUS STATES.
Each individual State of the Union bas control of the waters of
navigable streams and lakes within its borders, the right and interest
of the United States in such waters being only that their navigability
be preserved for interstate commerce. The title is in each State and
the use of the water is a matter of state regulation. (Pollard v.
Hagan, 3 How., 212; Shively v. Bowlby, 152 U. S., 1.)
In Shively v. Bowlby the court states:
Upon the American Revolution the title and the dominion of the tide waters and
of the lands under them vested in the several States of the Union within their respec-
tive borders, subject to the rights surrendered by the Constitution to the United States.
In the original States, by various laws and usages, the owners of lands bordering on
tide waters were allowed greater rights and privileges in the shore below high-water
mark than they had in England. The new States admitted into the Union since the
adoption of the Constitution have the same rights as the original States in the tide
waters and in the lands under them within their respective jurisdictions. Upon the
question how far the title extends of the owner of land bounding on a river actually.
navigable, but above the ebb and flow of the tide, there is a diversity in the laws of the
different States; but the prevailing doctrine no" is that he does not, as in England,
own to the thread of the stream. The title and rights of riparian or littoral proprietors
in the soil below high-water mark are governed by the laws of the various States, sub-
ject to the rights granted to the United States by the Constitution. (Kansas v. Colo-
rado, 206 U. S., 46; Hardin v. Jordan, 140 U. S., 371; Withers v. Buckley, 20 How.,
568; U. S. v. Rio Grande Dam and Irr. Co., 174 U. S., 690; Yutierres v. Albuquerqué
Land Co., 188 U. S., 545; Broder v. Water Co., 101 U. S., 274; Basey v. Gallagher,
20 Wall., 670; Martin v. Wadell, 16 Pet., 367; Huse v. Glover, 119 U. S., 546; St.
Louis v. Meyers, 113 U. S., 566; Barney v. Keokuk, 94 U. S., 324; Strader v. Graham,
10 How., 82; Sturr v. Beck, 133 U. S., 541; Jennison v. Kirk, 98 U. S., 453; Atchison
v. Peterson, 20 Wall., 507; The Montello, 20 Wall., 430; Boquillas Cattle Co. v. Curtis,
213 U. S., 339; Water Power Co. v. Water Commissioners, 168 U. S., 349; Goodlittle
v. Kibbe, 9 How., 471; Packer v. Bird, 137 U. S., 661; Kean v. Calumet Canal Co.
190 U. S., 452; Kaukana Water Power Co. v. G. B. and M. Canal Co., 142 U. S., 254.)
In some of the States the common-law rule as to the use of the
waters of a stream by riparian owners is followed, while in others
there is what is called the doctrine of prior appropriation, and then
again in other States a mixed application of the two doctrines is in
force. The doctrine of prior appropriation prevails generally in the
States west of the Mississippi River, especially in the Pacific States,
and the common-law doctrine in the States east of the Mississippi;
a few States of the west central group have the mixed application.
According to the doctrine of prior appropriation the person who
first appropriates the waters of a stream for a beneficial use has the
first right thereto, whether he be a riparian owner or not. A ver
thorough statement of this doctrine, its origin and growth, by Justice
Field appears on page 457 of volume 98 of the United States Reports
in the case of Jennison v. Kirk, which was brought up from the State
of California.
The common-law rule as laid down by Chancellor Kent is:
Every proprietor of lands on the banks of a river has naturally an equal right to the
use of the water which flows in the stream adjacent to his lands as it was wont to run
3
4 RIPARIAN RIGHTS AND WATER RIGHTS.
(currere solebat) without diminution or alteration. No proprietor has a right to use
the water to the prejudice of other proprietors above or below him unless he has a
prior right to divert it or a title to some exclusive enjoyment. He has no property
in the water itself, but a simple usufruct as it passes along. Aqua currit et debit
currere ut currere solebat is the language of the law. Though he may use the water
as it runs over his land as an incident to the land, he can not unreasonably detain it
or give it another direction, and he must return it to its ordinary channel when it
leaves his estate.
As each State has the control and regulation of water rights within
their respective borders, we will now consider the law on this point
in the various States as laid down by their constitutions, statutes,
and supreme court decisions.
CALIFORNIA.
California was admitted into the Union in 1850 and the only pro-
vision in the act for admission of September 9 (9 Stat., 453) relating
to water rights is “that navigable waters are declared common high-
ways and forever free to the inhabitants of the State and citizens of
the United States without any tax, impost, or duty therefor.”
Section 1 of article 14, constitution, 1879 (p. 443, vol. 1, Am. Chs.,
Cons., and Oc. L.) provides:
The use of all waters 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 this State, in the manner to be prescribed by law.
Section 1410, California Civil Code, provides:
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.
Section 1422, civil code, provides:
The rights of riparian proprietors are not affected by the provisions of this title.
Under the above section, one who bases his right on appropriation
of water over land then part of the public domain acquires no right
superior to those attaching to riparian lands which at the time of the
appropriation were private. (Hargrave v. Cook, 18 Cal., 72.)
In the case of Hill v. Newman (5 Cal., 446), Justice Bryan in ex-
plaining a water right said:
The right to running water is defined to be a corporeal right, or hereditament, which
follows or is embraced by the ownership of the soil over which it naturally passes
* * * From the policy of our laws, it has been held in this State to exist without
private ownership of the soil—upon the ground of prior location upon the land, or
prior appropriation and use of the water. *
And in the case of McDonald & Blackburn v. Bear River and
Auburn Water and Mining Company (13 Cal., 232, 233), Justice
Baldwin put it in this language:
The ownership of water as a substantive and valuable property, distinct, sometimes,
from the land through which it flows, has been recognized by our courts; and this
ownership, of course, draws to it all the legal remedies for its invasion. The right
accrues from appropriation; this appropriation is the intent to take, accompanied by
some open, physical demonstration of the intent and for some valuable use. We have
held that there is no difference in respect to this use, or rather purpose, to which the
water is to be applied; at least, that an appropriation for the uses of a mill stands on
the same footing as an appropriation for the use of mines.
The rule of the common law as to riparian rights in its extreme
i. are not adapted to the conditions existing in this State. It is
relaxed to a certain extent, and moreover right to the use of water
may be procured by prior appropriation thereof where the absolute
title to th. soil has not passed from the Government. But where the
RIPARIAN RIGHTS AND WATER. RIGHTS. 5
title to the riparian soil is in private parties it seems to be the law
that they are under the protection of the common law rule. The
rights in water acquired by a riparian proprietor are attached to the
soil and pass with it (Lux v. Haggin, 69 Cal., 255) and may be lost
only by grant, condemnation, or prescription. (Hargrave v. Cook,
108 Cal., 77; Bathgate v. Irvine, 126 Cal., 142; Eddy v. Simpson, 3
Cal., 249; Pet v. Santa Rosa, 119 Cal., 392; Gould v. Stafford, 77
Cal., 66; Union M. and M. Co. v. Ferris, 2 Sawy., 176; Union M. and
M. Co. v. Dangby, 2 Sawy., 450.)
Justice Heydenfeldt, in a leading case (5 Cal., 147), said:
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 the bed, they can not be taken to his prejudice; but if they have been already
diverted, and for as high and legitimate purpose as the one he seeks to accomplish,
he has no right to complain, no right to interfere with the prior occupation of his neigh-
bor, and must abide the disadvantage of his own selection.
Chief Justice Murray, in Hill v. King (8 Cal., 338), speaking on
this subject, said:
The only test as between parties where the lands belong to the United States or
this State is priority of location, and whether a party locates above or below the claim.
of another, his right depends or originates in appropriation alone; he must take sub-
ject to the higher right of those who were first in point of time to appropriate. If
the parties both claimed as riparian proprietors, then each alike would be entitled to
the reasonable use of the water for proper purposes. But in such case the supra
riparian proprietor must so do the same as to do his neighbor the least possible injury.
IDAHO.
The constitution of Idaho, 1889, section 1 of article 15, contains
the same provision as section 1 of article 14 of the California consti-
tution, supra (p. 943, 944, vol. 2, Am. Ch., Con., and O. L.).
Section 3 provides:
The right to divert and appropriate the unappropriated waters of any natural stream
to beneficial use shall never be denied. Priority of appropriation shall give the better
right as between those using the water; but when the waters of any natural stream are
not sufficient for the service of all those desiring the use of the same, those using the
water for domestic purposes shall (subject to such limit as may be prescribed by law)
have the preference over those claiming for any other purpose; and those using the
water for agricultural purposes shall have preference over those using the same for
manufacturing purposes. And in any organized mining district, those using the water
for mining purposes, or milling purposes connected with mining, shall have pref-
erence over those using the same for manufacturing or agricultural purposes. But
the usage by such subsequent appropriators shall be subject to such provisions of
law regulating the taking of private property for public and private use as referred to
in section 14, article 1 of this constitution.
Section 3240, Revised Statutes, puts the control of waters within
the borders of the State in the State and declares that all waters
are the property of the State; section 3242 provides for acquiring
the right to the use of water by appropriation.
In the case of Drake v. Earhart (2 Idaho, 716) it was held that
a prior appropriator of the water of a stream, all of which he claimed,
had used, and needed for irrigation, was entitled to the whole as
against a patentee of land through which the stream flowed, though
no custom to that effect was shown.
Said Chief Justice Beatty (p. 720):
...The important question * * : * is what, if any, rights the appellant has to any
of that water as a riparian proprietor. His claim is not based upon prior or any appro-
priation under our territorial laws, but upon the fact that stream in question flows by
6 RIPARIAN RIGHTS AND WATER. RIGEITS.
its natural channel through his land; hence that he is entitled to the use thereof allowed
by the common law. This doctrine of riparian proprietorship in water as against prior
appropriation has been very often discussed and nearly always decided the same way
by almost every appellate court between Mexico and the British possessions, and
from the shores of the Pacific to the eastern slope of the Rocky Mountains, as well as
y the Supreme Court of the United States. While there are questions growing out
of the water laws and rights not fully adjudicated, this phantom of riparian rights,
based upon facts like those in this case, has been so often decided adversely to such
claim, and in favor of prior appropriation, that the maxim “first in time, first in right,”
should be considered the settled law here. * * * It is the lineal descendant of
the law of necessity.
It is very evident, therefore, that in the State of Idaho, according
to the constitution, statutes, and decisions of the courts, all waters
are in full control of the State subject to appropriation for beneficial
uses and the sale, rental, or distribution thereof.
MONTAINA.
Section 15, article 3, constitution, 1889, provides (p. 2300, vol. 4,
Am. Ch., Con., and O. L.):
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 lands of others
for all ditches, drains, flumes, canals, and aqueducts necessarily used in connection
therewith, as well as the sites for reservoirs necessary for collecting and storing the
same, shall be held to be a public use.
Section 4840, Revised Statutes, 1907 (in part):
The State is the owner of all land below the water of a navigable lake or stream.
Section 4846, Revised Statutes, 1907 (approved Mar. 16, 1901):
The right to the use of any unappropriated water of any natural stream, water course,
spring, dry coulee, or other natural source of supply, and of any running water flowin
in the streams, rivers, canyons, and ravines of this State, may hereafter be acquire
by appropriation. gº
Section 4846, Revised Statutes, 1907, gives the United States,
through the Secretary of the Interior, the right to appropriate the
waters of streams or lakes within the borders of the State in the
same manner as an individual.
In the case of Columbia Mining Co. v. Holter (1 Mont., 569), Chief
Justice Warren, in speaking of the doctrine of prior appropriation,
used this language:
By appropriation a man acquires only the right of possession and user of water,
ualified by the right of others to its use, in such manner as shall not materially
#. or deteriorate it, at the place of his appropriation, in quantity or quality.
From the above sections it would appear that the right of the
United States to the streams and waters therein in this State is no
greater than that of an individual—i.e., to acquire a right therein by
appropriation.
WASHINGTON.
Section 1, article 17, constitution, 1889 (p. 4001, vol. 7, Am. Ch.,
Con., and O. L.):
The State asserts ownership to beds and shores of all navigable waters up to and
including the line of ordinary high tide, in water where tide ebbs and flows, and up
to and including the line of ordinary high water within the banks of all navigable
rivers and lakes: Provided, That this section shall not be construed so as to debar any
person from asserting his claim to vested rights in the courts of the State.
RIPARIAN RIGHTS AND WATER BIGEITS. 7
Section 2:
The State of Washington disclaims all title in and claim to all tide, swamp, and
†ººd lands patented by the United States: Provided, The same is not impeached
or fraud.
Section 1, article 21:
The use of the waters of the State for irrigation, mining, and manufacturing purposes
shall be deemed a public use.
Justice White:
The provision of article 17, section 1, of the constitution was evidently for the pur-
pose of establishing the right of the State to the beds of all navigable waters in the State,
whether lakes or rivers, or fresh or salt, to the same extent the Crown had in England
in the sea and in the arms and inlets thereof and in the tidal rivers, and to eliminate
the distinctions existing under the rule of the common law in this respect.
A lower riparian owner can not be deprived of his right to the usual
and undiminished flow of water without the exercise of eminent
domain, even where the upper proprietor is a municipal corporation
which seeks to divert the waters for necessary public use. It was
contended that by section 1, article 17, the State could authorize
the diversion of a stream for the use of the inhabitants of a city, it
being a public use and a paramount necessity superior to every other
use. Justice White said further:
Though this section has the effect, as has been held by this court in Eisenbach v.
Hatfield (2 Wash., 236) and Harborland Commissioners v. State (2 Wash., 530), of
vesting in the State the entire and exclusive ownership of the beds and shores of all
navigable waters, it should not be construed as affecting the rights of riparian proprie-
tors upon nonnavigable water courses, though their source is in navigable waters.
The use of the water in such nonnavigable stroams is not inconsistent with the reten-
tion of the fee in the bed of navigable waters in the State. The provision of section
16, article 1, of the constitution protects private property from confiscation for public
use; and the proviso to article 17, section 1, clearly indicates that so far as rights had
become vested, notwithstanding the other provisions of this section, the owner thereof
should have the right to assert them in the courts; and, if this language means any-
thing, it is that those rights should be protected and guarded by the courts. (24 Wash.,
499, 500, 501, New Whatcom v. Fairhaven Land Co.)
Section 4091, general laws:
The right to the use of water in any lake, pond, or flowing spring in this State or
the rights of the use of any water flowing in any river, stream, or ravine of this State,
for irrigation, mining, or manufacturing purposes, or for supplying cities, towns, or
villages with water, or for waterworks, may be acquired by appropriation and as
between appropriators the first in time is the first in right.
Sections 4100 and 4101 gives the right to riparian proprietors to
use unappropriated waters for purposes of irrigation, and section 4102
rovides for the procuring of right of way across intervening lands
or ditches, etc. . §
A prior appropriator of water over public lands can not be defeated
of his rights by subsequent homesteaders on the land. (Thorpe v.
Tenem, 1 Wash., 566.)
NORTH DAIKOTA.
Article 17, section 210, constitution, 1889 (p. 2885, vol. 5, Am. Ch.,
Con., and O. L.):
All flowing streams and natural water courses shall forever remain the property of
the State for mining, irrigating, and manufacturing purposes.
Section 4798, Revised Codes, 1905:
The owner of the lands owns the waters standing thereon, or flowing over or under
its surface, but not flowing in a definite stream. Water running in definite stream
8 RIPARIAN RIGHTS AND WATER RIGEITS.
formed by nature, over or under the surface, may be used by him as long as it remains
there; but he may not prevent the natural flow of the stream or of the natural springs
from which it commences its definite course, nor pursue or pollute the stream.
Section 7604:
All waters within the limits of the State from all sources of water supply belong to
º public, and except as to navigable waters, are subject to appropriation for bene-
cial use.
Section 7639 gives the United States the right to appropriate
waters within the State the same as an individual.
The homstead settlers have superior rights over subsequent miner's
claims. (Sturr v. Beck, 6 N. Dak., 71; 133 U. S., 541.)
A riparian owner may use reasonable quantity of water for irriga-
tion purposes. An appropriator who acquires subsequent rights
can not complain of use made of water by upper riparian proprietor.
(Lone Tree É. Co. v. Cyclone Ditch Co., 15 S. B. 519.)
º the case of Bigelow v. Draper (6 N. Dak., 152) Justice Corliss
S8,101
At common law the owner of lands through which a nonnavigable stream flowed
was possessed of the title to the bed of the stream as well of the right to a reasonable
use of the water. The land under the water was his, the right to a reasonable use
of the stream was as much his property as the land itself. The course of the stream
could not be so diverted as to cause it to cease to flow in its accustomed channel upon
his property. These doctrines of the common law were in force in the Territory of
Dakota at the time of the adoption of the constitution of this State. By virtue of
them the riparian owners in the Territory were vested with specified property rights
in the bed of all natural water courses, and in the water itself. Such rights were
under the protection of the fourteenth amendment to the Federal Constitution,
which protects property against all state actions that does not constitute due process
of law. It follows that section 210 of the state constitution would itself be unconsti-
tutional in so far as it attempted to destroy those vested rights of property, if it should
by construction be given a scope sufficiently wide to embrace such matters. For
this reason we feel constrained to hold, despite its broad language, that section 210.
was not framed to divest the rights of riparian owners in the waters and beds of all
natural water courses in the State.
SOUTH DAKOTA.
Section 192, Revised Code, 1903:
The ownership of land below ordinary high-water mark and the land below the
water of a navigable lake or stream is regulated by the laws of the United States, or
by such laws of the State as the legislature may enact.
Section 278, Revised Code:
The owner of the lands owns the waters standing thereon or flowing over or under its
surface, but not flowing in a definite stream. Water running in definite stream formed
by nature over or under the surface may be used by him as long as it remains there,
but he may not prevent the natural flow of the stream or of the natural springs from
which it commences its definite course, nor pursue nor pollute the stream.
Section 289, Revised Code:
Except where the grant under which the land is held indicates a different intent,
the owner of the upland, when it borders upon a navigable lake or stream, takes to
the edge of the lake or stream at low-water mark, and all navigable rivers shall remain
and be deemed public highways. In all cases where the opposite hanks of any streams
not navigable belong to different persons the stream and the bed thereof shall become
common to both.
Section 2687, Annotated Statutes, 1899:
Any person or persons, corporation or company, who may have or hold a title or
ossessory right to any mineral or agricultural lands within the limits of this State shall
e entitled to the usual enjoyment of the waters of the streams or creeks in said State
g & f
RIPARIAN RIGEITS AND WATER RIGHTS. 9
for mining, milling, agricultural, or domestic purposes: Provided, That the right to
such use shall not interfere with any prior right or claim to such waters when the law
has been complied with in doing the necessary work.
Sections 2688 and 2692 give right of way through and over any
tract or piece of land for the above purposes and provides for dam-
ages for such cutting over lands.
To the contention that the provisions of section 278, Revised Code,
were of no effect after the adoption of the prior appropriation doc-
trine, Justice Corson, in the case of The Lone Tree Ditch Co. v. Cy-
clone Ditch Co. (15 S. Dak., 525), said:
The Government has by these provisions (secs. 2339 and 2340, U. S. Rev. Stats.)
recognized the right to appropriate water and taking the same from its natural channel.
The legislature of this State has properly provided for the making of such appropria-
tion, but the right of the riparian owners to the use of such waters which have become
vested are such as are prescribed by section 2771, Compiled Laws (sec. 278, Rev.
Code). In our opinion, therefore, the provisions of section 2771 are still in force, and
this seems to have been the opinion of the Supreme Court of the United States in
Sturr q). Beck. * * *
In that State (California) as in this, two systems prevail: One for acquiring the
use of water for irrigation purposes by appropriation, and the other the common-law
right to the use of water not so legally appropriated for irrigation purposes, by the
riparian owner. -
TJTAH.
Section 1, article 17, constitution, 1895 (p. 3728, vol. 6, Am.
Ch., Con., and O. L.):
All existing rights to the use of any of the waters in this State for any lawful or
beneficial purpose are hereby recognized and confirmed.
Section 1261, Revised Statutes, 1898, title 33:
.The rights to the use of any unappropriated waters of the State may be acquired
by appropriation.
Section 1262, Revised Statutes:
The appropriation must be for some useful and beneficial purpose, and when the
appropriator or his successor in interest abandons or ceases to use the water for a
period of seven years the right ceases; but questions of abandonment shall be ques-
tions of fact and shall be determined as are other questions of fact.
Sections 1266 and 1277 provide for secondary rights in water; for
acquiring right of way over adjacent lands for ditches, and so on, by
eminent domain; and for just compensation to the owner of land
injured thereby.
A municipal corporation took possession and control of the waters
of a certain stream with the express consent of the original locators
and held the stream more than seven years; held, that it acquired
the ownership of the water under the statute of limitations. (Spring-
ville v. Fulmer, 7 Utah, 450.)
A prior appropriator of water of a certain stream can not so in-
crease his demands, and use the water as to deprive a subsequent
appropriator of his rights acquired before such increased demands and
l]S63.
Justice Cherry, in the case of Becker v. Marble Creek Irrigation
Co. (15 Utah, 228, 229), said:
The waters of a prior appropriator are fixed by the extent of his appropriation for a
beneficial use, and others may subsequently appropriate any water of a stream not so
used by a prior appropriator; and such latter appropriation becomes a vested right,
and entitled to as much protection as the former, and a right of which he can not be
10 RIPARLAN RIGHTS AND WATEB RIGHTS.
deprived except by voluntary alienation or forfeiture by abandonment. The rights
of the former being thus fixed, he can not enlarge his rights to the detriment of the
latter by increasing his demands or by extending his use to other lands, even if used
for a beneficial purpose.
As illustrative of the necessity and importance of applying the
doctrine of appropriation in this State, hear what Justice Blackburn,
in the case of Stowell v. Johnson (7 Utah, 225), has to say:
*Riparian rights have never been recognized in this Territory, or in any State or
Territory where irrigation is necessary; for the appropriation of water for the purpose
of irrigation is entirely and unavoidably in conflict with the common-law doctrine
of riparian proprietorship. If that had been recognized and applied in this Territory
it would still be a desert, for a man owning ten acres of land on a stream of water
capable of irrigating one thousand acres of land or more, near its mouth, could pre-
vent the settlement of all the land above him.
So it is apparent that in the State of Utah the doctrine of prior
appropriation is applied to the use of water in its extreme rigor.
WYOMING.
The following are sections of the Wyoming constitution, 1889,
relating to water rights (p. 4117, vol. 7, Am. Ch., Con., and O. L.):
Section 31, article 1. Water being essential to industrial prosperity, of limited
amount, and easy of diversion from its natural channels, its control must be in the
; which in providing for its use, shall equally guard all the various interests
II, VOIVēOl.
Section 32, article 1. Private property should not be taken unless by the consent
Qf the owner, except for private ways of necessity, and for reservoirs, drains, flumes,
or ditches on or across the land of others for agricultural, mining, milling, domestic,
or sanitary purposes; nor in ahy case without due compensation.
Section 1, article 8. The water of all natural streams, springs, lakes, or other col-
lections of still water within the boundaries of the State are #. declared to be
the property of the State.
Section 3, article 8. 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.
Section 917, Revised Statutes, 1899, and the following sections
give the right to persons, associations, and corporations to appro-
priate water for beneficial uses by first making application to the
state engineer before constructing any ditches or commencing any
work for the diverting of the water.
To the contention that the State could not acquire ownership in
the waters of the State by mere assertion, Chief Justice Potter, in
* of Farm Investment Company v. Carpenter (61 Pacific, 259),
$8,101 .
In this State the doctrine prevails that the right to the use of water may be acquired
by priority of appropriation for beneficial purposes, in contravention to the common-
law rule that every riparian owner is entitled to the continued natural flow of the
water of the stream running through or adjacent to his lands. The appropriation
consists in a diversion of the water by some adequate means and its application to
a beneficial use. * %
At the outset, however, it is strenuously insisted that the declaration contained in
the constitution, that the waters of the natural streams, etc., are the property of the
State, is meaningless and of no force and effect. It is argued that the State no more
than an individual can acquire property by mere assertion of ownership, and that the
United States as the primary owner of the soil is also primarily possessed of title to
the waters of the streams flowing across the public lands. This contention demands
more than a F. notice. So far as any proprietary rights of the United States are
concerned, the question would seem to be settled in favor of the effectiveness of the
declaration by the act of admission which embraces the following provision, “and that
RIPARIAN RIGHTS AND WATER. RIGEITS. 11
the constitution which the people of Wyoming have formed for themselves, be, and
the same is hereby, accepted, ratified, and confirmed.” “ * * The common-law
doctrine of riparian rights relating to the use of water of the natural streams and other
natural bodies of water not prevailing, but the opposite thereof, and one inconsistent
therewith, having been affirmed and asserted by customs, laws, and decisions of courts,
and the rule adopted permitting acquisition of rights by appropriation, the waters
effected thereby become, perforce, publici juris. It is therefore doubtful whether
an express constitutional or statutory declaration is required in the first place to render
them public. * * * . 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.
The act of July 26, 1866 (14 Stat., 253, ch. 262, sec. 9), above re-
ferred to, which is now sections 2339 and 2340, reads as follows:
SEC. 2339. Whenever, by priority of possession, rights to the use of water for min-
ing, 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 domain, the party committing such injury or damage shall
be liable to the party injured for such injury or damage.
SEC. 2340. All patents granted, or preemption 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 recog-
nized by the preceding section.
The desert-land act of March 3, 1877 (19 Stat., 377), which applies
to the States of California, Oregon, Nevada, Washington, Idaho,
Montana, Utah, Wyoming, Arizona, New Mexico, and the Dakotas,
sanctions the prior appropriation of water and provides that:
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.
NEVADA.
Section 354, Compiled Laws:
All natural water courses and natural lakes, and the waters thereof which are not
held in private ownership, belong to the State and are subject to regulation and control
by the State.
Section 355, Compiled Laws:
All existing rights to the use of water, whether acquired by appropriation or other-
wise, shall be respected and preserved and nothing in this act shall be construed as
enlarging, abridging, or restricting such rights.
Section 356, Compiled Laws:
No right except usufructuary right can be acquired, i.e., for beneficial purpose.
In the case of Walsh v. Wallace (26 Nev., 327) it was held that the
act of 1866 did not introduce any new system or policy, but merely
confirmed to the owners of water rights on public lands the same
rights which they held under the local customs. Chief Justice
assey said further:
And it has been held by this court that the doctrine of riparian rights is so unsuited
to the conditions existing in this State of Nevada and is so repugnant in its operation
to the doctrine of appropriation that it is not a part of the law and does not prevail here.
12 RIPARIAN RIGEITS AND WATER. RIGHTS.
NEBRASKA.
The common-law rules as to rights and duties of riparian owners
are in force in every part of the State of Nebraska, except as altered
or modified by statute. (Meng v. Coffey, 67 Nebr., 500; Crawford v.
Hathaway, 67 Nebr., 325.)
Section 6821, Cobbey's Annotated Statutes, 1909:
The water of every natural stream not heretofore appropriated within the State of
Nebraska is hereby declared to be the property of the public and is dedicated to the
use of the people of the State, subject to appropriation, as hereafter provided.
Section 6844, Cobbey's Annotated Statutes, 1909:
Water for the purpose of irrigation in the State of Nebraska is hereby declared to be
a natural want.
Section 6822, Cobbey's Annotated Statutes, provides that water
in the streams within the State may be appropriated for beneficial
uses, priority of appropriation to have the better right; also that
domestic purposes are preferred over any other purpose and agri-
cultural purposes over manufacturing purposes.
Riparian owners on navigable rivers hold to the thread of the
stream subject to the public easement of navigation. A riparian
right is not an easement, but a part and parcel of the land itself; it
is a property right, and as such is entitled to protection the same as
gº property. (Kinkhead v. Turgeon, 74 Nebr., 580; Cline v.
tock, 72 Nebr., 70.)
In the case of Crawford v. Hathaway (67 Nebr., 325) the court held
that the right of a riparian proprietor as such to use water for irri-
gation purposes is limited to riparian lands. Even though he does not
use the water on riparian lands, that does not permit him to divert
the water to nonriparian lands.
COLORADO.
Section 5, article 16, constitution, 1876 (p. 507, vol. 1, Am. Ch.,
Con., and O. L.):
The water of every natural stream not heretofore appropriated within the State of
Colorado is hereby declared to be the property of the public; and the same is dedi-
cated to the use of the people of the State, subject to appropriation as hereafter
provided. -
Section 6, article 16, constitution:
Priority of appropriation gives the better right as between those using for the same
purpose, and the right to divert unappropriated streams shall never be denied. (When
there is not sufficient water, domestic purposes have preference over any other pur-
pose and agricultural over manufacturing purposes.)
Section 7, article 16, constitution, provides for the acquiring of
right of way over public, private, and corporate lands for j.
canals, and flumes for domestic purposes, irrigation, mining, manu-
facturing, and drainage, upon the payment of just compensation.
The common-law doctrine is also inapplicable to the State of Colo-
rado. Said Chief Justice Hoyt, in the case of Fort Morgan Land and
Canal Co. v. South Platte Ditch Co. (18 Colo., 1):
Under our constitution the water of every natural stream in this State is deemed to
be the property of the public. Private ownership of water in the natural stream is
not recognized. The right to divert water therefrom and apply the same to bene-
ficial uses is, however, expressly guaranteed. By such diversion and use a priority
of right to the use of the water may be acquired. -
RIPARIAN RIGHTS AND WATER RIGHTS. 13
And Justice Helm, discussing the doctrine of prior appropriation
in the case of Wheeler v. Irrigation Co. (10 Colo., 582), says:
Our constitution dedicates all unappropriated waters in the natural streams of the
State to the use of the people, the ownership thereof being vested in the public. We
shall presently see that after appropriation the title to this water, save, perhaps, as
to the limited quantity that may be actually flowing in the consumer’s ditch or lateral,
remains in the general public, while the paramount right to its use, unless forfeited,
continues in the appropriator.
See also the following - cases: Strickler v. Colorado Springs (16
Colo., 67); Coffin v. Left Hand Ditch Co. (6 Colo., 446, 447); Yankee
v. Nichols (1 Colo., 551). -
OKLAHOMA.
Section 3915 of the Compiled Laws of 1909 declares the rivers and
streams of the State to be the property of the public, and that use of
the water in the streams may be acquired by appropriation.
Section 3918, Compiled Laws, provides for the procuring of right of
way over private and public lands for irrigation, etc., by condem-
nation.
Section 23, article 2, constitution, 1907 (p. 4275, vol. 7, Am. Ch.,
Con., and O. L.): -
No private property shall be taken or damaged for private use with or without com-
ensation unless by the consent of the owner, éxcept for private ways of necessity or
or drains and ditches across lands of others for agricultural, mining, or sanitary pur-
poses, in such manner as may be prescribed by law. 8.
In regard to appropriation of waters for beneficial uses, Chief
Justice Burford, in Gates v. Settlers' Milling, Canal and Reservoir
Co. (91 Pac., 858), said:
It seems the settled law in States where irrigation problems hºrſe 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 construction of ditches,
or channels for carrying water; the water must be diverted into the artificial channels
and carried through them to the place to be used; and it must actually be applied to
beneficial uses, and he has the best right who is first in time. •
OREGON.
The act for admission of Oregon, February 14, 1859 (11 Stat., 383),
section 2, declares:
* * * And said rivers and waters, and all the navigable waters of said State,
shall be common highways and forever free, as well as to the inhabitants of said State
as to all other citizens of the United States, without any tax, duty, impost, or toll
therefor.
Section 4993, Code:
The use of the water of the lakes and running streams of the State of Oregon for
º: rental, sale, or distribution for purposes of irrigation, and supplying water
or household and domestic consumption, and watering live stock upon dry lands of
the State, is a public use, and the right to collect rates or compensation for such use of
said water is a franchise. A use shall be deemed general within the purview of this
act when the water appropriated shall be supplied to all persons whose lands lie
adjacent to or within reach of the line of the ditch or canal or flume in which said water
is conveyed, without discrimination other than priority of contract upon payment of
charges therefor, as long as there may be water to º
Section 4994, Code, gives to corporations the right to appropriate
and to divert water from its natural bed or channel, to condemn land
for the purpose of right of ways for ditches, and to condemn the
14 RIPARLAN RIGHTS AND WATER. RIGHTS.
rights of riparian proprietors upon the lake or stream from which such
ºrg.º.º. is made.
ection 5022, Code:
The use of the water of the lakes and running streams of the State of Oregon for the
purpose of developing the mineral resources of the State, and to furnish electrical
power for all dP. is declared to be a public and beneficial use and a public
necessity, and the right to divert any unappropriated waters of any such lakes or
streams for such public and beneficial use is hereby granted.
In this State it has been held that a riparian owner holds to high-
water mark on navigable streams and to the middle of nonnavigable
streams.
Each riparian owner is entitled to a reasonable use of the water
for domestic purposes and also, in addition thereto, a reasonable use
for irrigation, even though such use may diminish the flow to lower
jº, ºwn. (Shaw v. Oswego, 10 Oreg., 371; Jones v. Conn, 39
reg., 30.
In the case of Kahler v. Campbell (13 Oreg., 596) it was held that
where two settlers on government land severally divert a stream at
a point above them and subsequently one of them acquires title to
the land at that point, prior appropriation and not common-law
riparian rights govern.
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