The Daily state register. [volume] (Carson City, Nev.) 1870-1872, 1871-12-10
VaNSICKLE vs.. HAINES.

IlSnt OF fENeGtOte ttt-feIecIlnS All
matters of policy or necessity ana
applying to the facts and circum-
stances of this case those rules of law
which We derive from legal princl-
pies and Judicial precedents-we
maintain the decision TO be fatally
wrong in matters of the gravest mag
nitude to the people.
If We grant the doctrine ofriparian
proprietorship TO be paramount in
this State, still we maintain. we think
unanswerably, that Vansickle should
have had decree.
The law Of riparian proprietorship
can have no existence without a
riparian proprietor. There can be
no riparian proprietor without aper-
son OF thing capable of eajoying the
water and making it available il its
flow. Thereof be norip&rian rights
in contemplation Of law without nat
ural wants or artificial necessities.
The law Of riparian propristOrship
presupposes ownership already ex-
listing, and rights to the use of the
water already acquired. It is uni
versally admitted that there can be
no property in the body of running
water. "Water flowing is Pes52ici
.j"rts.' Running water, light and
air are things which are
useco5d names \ the proper
tv of which belongs to no person,
but the rise to all" "Water is 4
movable, wandering thing, and
must of necessity continue common
by the law OF nature" Such is the
emphatic and comprehensive Ian
guage of both the civil and common
law.
Running water is no part of the
land over which it flows. It is not
appurtenant to land, nor the prop
ertv of him who owns the land. The
right 10 water consists in its use F.;
not in the fluid itself, but in its mo-
mentum. Story says it is a right
to the use of the water flowing over
the land" Chief Justice Shaw says
= it consists in the fall Of the stream
when in its natural state as it passes
through the land" Angel, il his
excellent treatise on w~atercOurses
says, By all~the modern as well as
by all the ancient authorities the
right of property in wateris usnfruc-
tuuy and consists not so much OF
the fluid itself as of the advantage OF
its momentum or impetus.' Thus we
observe that water is q wandering
thing" common and free to all man
kind, not susceptible of ownership
in which there can exist no interest
but a use which, like air, may be
enjoyed ythe first occupant which,
indispensable to life belongs to man
in a state of nature by reason of his
natural wants independently Of So
ciety :; and which, like light, cannot
be regulated by civil law.
New the Government of the United
States is anf:deal thing !; a body pc
lite without functions. Its func-
tons are goverhinental-to make and
execute laws, not to raise potatoes
or crush quartz. It a neither
breathe, nor see, nor drink-can
neither apply the waterto any prac-
teal aEa useful purpose, FOR enjoy
from it any beneficial or pleasurable
emotion. How, then, can it Gcqnire
a usufruct in it? As we have seen.
the right itself is a use, not the prop
erty in the fluid but a right tc apply
it as it.fows. But as the Govern
ment cannot make such application
of it, it is a palpable solecism to say
it can have a right to do so-a use in
that which it ca1eaot use.
1t is still more absurd that the
Government can grant a thing which