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WHOLE No. 13.

MARCH 27, 1884.

VOL. II. No. 5.


(Continued.) In addition to the general doctrine thus stated and illustrated, the following special rules, applying to particular circumstances, have been the subject matter of decision. If two persons successively appropriate water of a stream by means of their ditches, and a third person turns into the same stream, at a place higher up than the heads of both these ditches, additional water brought by means of his own ditch from another and different stream, without any intention of recapturing the same, the water thus discharged becomes publici juris, to all intents a part of the natural waters of the stream into which it is emptied; and it belongs to the two appropriators according to their priority of right-the one having made the prior appropriation is first entitled to the increased flow to the extent of his appropriation.' A

person who had located a mill site on a stream, and appropriated the water for the purposes of his mill, sold and conveyed all his interest in the water of the stream to the proprietor of a ditch above him; held, that he had not thereby lost his prior right to the water which still flowed down the stream after such sale, as against a third party who had appropriated the water below him subsequently to his original appropriation but before his said sale and conveyance. In the case of Strait v. Brown,' the supreme court of Nevada decided a point which may be of much practical importance. Although no distinction, in general, exists between waters running under the surface in defined channels, and those running in such channels upon the surface; and although water percolating through the ground below the surface is not governed by the same rules which pertain to running streams; still, subsequent appropriators can not, as agaiust the prior appropriator of the same stream, lawfully acquire rights to the waters of the springs which constitute the source of such stream, simply because the means through which the waters are conveyed from the springs to the stream are

I Davis v. Gale, 32 Cal. 26. 2 McDonald v. Askew, 29 Cal. 200. 3 16 Nev. 317.

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subterranean and not well understood nor defined. In other words, the subsequent appropriators on a stream can not cut off and destroy or impair the rights of the prior appropriators by tapping the very springs themselves which constitute the sources of the stream, under color of a right to reach subterranean and percolating waters."

6. Abandonment of a prior appropriation.

Many of the cases heretofore cited, and several of the rules formulated in the foregoing sections, recognize the fact that there may be an abandonment of the exclusive right to divert and use water acquired by or resulting from a prior appropriation; that such an abandonment may be made either after the prior appropriation has become perfect and complete, and the right under it vested, or while it is yet imperfect and incomplete, and the right under it remains incohate, and finally, that an abandonment may be express and immediate, by the intentional act of the appropriator, or may be implied from his neglect, failure to use due diligence in the construction of his works, nonuser of them after completion, and the like. The general doctrine concerning the effect of such an abandonment, at whatever time or in whatever manner made, is well settled. The prior appropriator thereby loses all of his exclusive rights to take or use the water which he had acquired, or might have acquired by his appropriation; and he can not, after an abandonment, reassert his original right to the same or the same amount of water as against a second or other subsequent claimant who has taken proper steps to effect an appropriation thereof. If there has been no subsequent appropriation of the water thus abandoned, by another party, the prior appropriator may, of course, regain his former right, but this can only be done by his properly commencing and completing de novo the requisite steps in order to effect an appropriation, as heretofore described. He is in exactly the same situation as though he had hitherto made no attempt to appropriate the water.

The methods in which an abandonment may be accomplished, are various. Since the right held by the appropriator is an interest in land, an incorporeal hereditament, it can only be transferred, as has already been shown, by an instrument in writing sufficient to convey real estate. It follows, that a mere 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 attempted assignee or vendee, the only possible result is

* For further special applications, see Ne- concerning the mode of making an approvada W. Co. v. Powell, 34 Cal. 109; Rey. priation, due diligence in completing the nolds v. Hosmer, 51 Id. 205. The particular works, etc.; and concerning the discharge of facts and rulings in these cases have been water into the stream without intent of sufficiently described under previous sections. capture.

5 Davis v. Gale, 32 Cal. 26; Barkley v. Smith v. O'Hara, 43 Cal. 371. Tieleke, 2 Mont. 59; and see cases cited ante,

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an immediate and complete abandonment. The same result follows from an attempted transfer of the water right by means of an imperfect deed or instrument of conveyance.' Returning the water, which has been diverted back into the natural channel of the stream without the intent of “recapturing" it, would be an express abandonment of all further rights to the use of such water; and the absence of any intent to“ recapture” would generally be inferred, it seems, unless the returning of the water, after its first diversion, was made for the purpose of using the natural channel, as a part of the appropriator's ditch or canal. Again, an abandonment may be inferred from a neglect to use the water for an unreasonably long time, especially if the special purposes of its original appropriation had been fully accomplished. Thus, in an important case already quoted, the Court, after saying that the prior apropriator of water for a particular mine may, when he has worked out and abandoned said mine, extend his ditch and use the water at other points, without losing his priority, further held, that, where water had been appropriated for a particular purpose, and that purpose had been accomplished, the appropriators dispersed, and allowed a long time to elapse without making any use of the water under their appropriation, and finally sold the ditch to other parties for a nominal sum, all these facts were sufficient evidence of an abandonment by them; in other words, an abandonment of their prior appropriation might be inferred from such conduct. The Court further held that when a party has abandoned his prior appropriation, he cannot, by a sale and conveyance, revive his prior rights in favor of his grantees, even though the sale is bona fide on their part. On the other hand, the mere suspension of work in constructing a ditch for a limited and reasonable time, would not necessarily be an abandonment of the appropriator's inchoate right. It has already been shown in a previous section, that one who has given notice of his intention to appropriate the water of a certain stream, must commence and prosecute his works unto completion with due and reasonable diligence, in order to perfect his exclusive right by appropriation. It seems to follow from their affirmative proposition, that a neglect or failure on his part to use the due and reasonable diligence so required in constructing his works, must necessarily amount to an abandonment of the intended appropriation, and of all rights which could have been acquired by its means." 7. This system as a whole.

The foregoing summary of doctrines and rules presents the system of water-rights, based upon prior and subsequent appropria

Barkley v. Tieleke, 2 Mont. 59. In both 8 Woolman v. Garringer, 1 Mont. 535; these instances, as has already been shown, Davis v. Gale, 32 Cal. 26; Butte Canal Co. v. no interest passes to the transferces; they do Vaughn, 11 Id. 143; and see ante p. 785, Vol. 1. not succeed to any priority held by their as- 9 Davis v. Gale, 32 Cal. 26. signor; their rights of priority date only from 10 Atchison v. Peterson, 1 Mont. 561. the time of their own possession and user. 11 See ante p. 787, Vol. 1.

tions of streams and lakes situated within the public domain, or lands belonging to the United States, as that system has been built up by judicial decisions upon the foundation of local customs recognized and ratified by the legislation of Congress. It is plain, upon an examination and comparison of the special rules formulated in the preceding sections, that the system, in theory at least, furnishes all the possible protection for the rights of subsequent and successive claimants after it has once admitted that a party can, by prior appropriation, obtain a prior and exclusive right to the water of a stream or lake, limited and measured only, in its extent, by the actual needs of the particular purpose for which the appropriation is made. The system places an obstacle in the way of a prior appropriator's obtaining an exclusive control of the entire stream, no matter how large; and secures the rights of subsequent appropriators of the same stream; by reqairing that a valid appropriation shall be made for some beneficial purpose, presently existing or contemplated; and by restricting the amount of water appropriated to the quantity needed for such purpose; and by forbidding any change or enlargement of the purpose, which should increase the quantity of water diverted under the prior appropriation, to the injury of subsequent claimants; and by subjecting the prior appropriation to the effects of an abandonment, by which all prior and exclusive rights once obtained would be lost. By these means, a party is, in theory at least, prohibited from acquiring the exclusive control of a stream or any part thereof, not for present and actual use, but for future, expected, and speculative profit or advantage; in other words, a party cannot obtain the monopoly of a stream, in anticipation of its future use and value to miners, farmers or manufacturers. While the theory thus appears to be admirable, the practical workings of the system may be attended with some difficulties, and they have certainly involved a great amount of litigation. When a prior appropriator has actually established himself on a stream, and is diverting its waters by ditches, an attempt to enforce the rights of a subsequent claimant may be difficult, and may require an expensive and protracted controversy. The prior appropriator is certainly placed in a position of great advantage in maintaining his own claims, even though unfounded and unlawful, against those who are seeking to enforce their subsequent and lawful rights to use the water of the stream. But the principal defect of the system, the one capable of working the greatest injustice, is inherent in the very theory itself, in its fundamental conception. This defect is, the total absence of any limit to the extent of a prior appropriation to the amount of water which may be takenexcept the needs of the purposes for which it is made. The prior appropriator, in order to carry out a purpose regarded by the law as beneficial, of great magnitude-such, for example, as an extensive system of hydraulic mining or the irrigation of a large tract of farming lands, or, doubtless, the supply of a municipality--may divert and consume without returning to its natural channel, the entire water of a public stream, nor matter what may be its size, or length, or the natural wants of the country through which it flows. Furthermore, this appropriation may be made by a party who owns no land upon the banks of the stream, and for a purpose situated at any distance from the stream itself, far beyond the region to which the stream naturally belongs, and which would naturally receive its benefits. In this manner the natural benefits of a stream to the lands situated upon its bank throughout its entire length may be completely destroyed, and the natural rights of all persons who should afterwards settle and purchase lands adjoining the stream may be totally ignored, disregarded, and abrogated by such a prior appropriation.

This first branch of the discussion may be appropriately ended by the statement of an important point just decided by the supreme court of California, that, in the absence of all evidence, it will be presumed that a stream, at the time when its waters were appropriated, was a public stream, and all the lands on its banks were public lands of the United States. There had been several successive appropriations of a stream called Lytle Creek by different parties. The court say: “There is nothing in the pleadings or findings to indicate that when all the waters of Lytle Creek were appropriated, any of the lands by or through which the creek flows had passed into private ownership. It must be presumed,, therefore, that such lands were public lands of the United States, and the rights to the water of Lytle Creek acquired by prior appropriations were confirmed by the act of congress of 1866. The court found that the settlement on government land by defendant was made after the act of 1866 took effect. Any rights which he might acquire, therefore, from the government would be subject to the previously confirmed appropriations of the water.” 12 This action was brought by a prior appropriator to restrain the defendant, a subsequent appropriator from an alleged unlawful diversion. It appeared that there were other distinct and separate appropriators who were not parties to the suit. The court made the following important ruling concerning the necessary parties under such circumstances: “In an action by an appropriator of the water of a certain stream to restrain a defendant from diverting the same, when the court finds that the plaintiff has a separate title to the use of all water for a certain length of time out of a longer period—namely, ‘for one hundred and thirty-two hours and nineteen minutes out of each and every three hundred and seventy-two hours')—and that other appropriators had a right to the use thereof, but fails to find as to the order in which the persons interested in these appropriations used the water, or as to 12 Lytle Creek W. Co. v. Perdew, 1 West Coast Rep. 866 (decided February 12th, 1884).

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