The Daily state register. [volume] (Carson City, Nev.) 1870-1872, 1871-12-12
VANSICKLE vs.. HAINES.
Is Diversion of Water a Trespass against
The Government!

tai maxims and principles Of the
common law that the subject is al
most exhaustless. In the beginning
We proposed to show thatthe decision
was, first, in violation of the common
law secondly, in violation of the
statute law of this State and thirdly
in violation Of the Congressional
statutes. We advance some addi-
tional considerations on the first
branch of thesubiect, and shall then
endeavOr to show the decision to be
in the teeth of both State and Fed
eral legislation. The general inter-
est in this matter, and the disastrous
consequences Of the decision, justi-
fly a continuance of the discussion.
On Sunday we maintained that
the government had no usufruct in
the water of Daggett Creek-and
having none, by its patent vested
none in Haines-that Haines took
the land with no rights except such
as existed at the time the patent IS
sued. We shall now enforce this
position by reference to the settled
principles and analogies Of the law.
1t will not be disputed that light
and air are upon the same footing
with running water each an ele-
ment indispensable to the existence
of man ; neither the subject Of oj>0-
luteproperty-alla as Blackstone puts
it, movable, wandering things and
must of necessity continue common
by the law Of nature" in which man
can have "only a temporary, tran
silent, u~sufructuary property" If it
be a trespass to divert water from
the public land it must upon similar
principles and for like reasons be a
trespass to exclude the light or or
rupt the atmosphere upon such
lands. No candid mind Will doubt
this. The pateEtee who succeeds to
the Government title has as clear
right 10 the land freed from corrupt
ed atmosphere, OF unobstructed
light, as with IN undimiuished flow
Of water. But is it doubted that he
who first occupies light or air has
the right to continue in its enjoy
ment to the exclusion Of all others ?
For the first time in the history of
Jurisprudence it is asserted in Van
sickle vs.. Haines to be a trespass
against the United States to divert
water from the public lands. In
credible as t may seem, upon this
thread hangs the whole decision.
Now if it be a trespass to divert, It
must, a fortori, be atrespass to con-
sumo and IS we have seen. if it be
4 trespass to consume water it is
likewise q trespass to consume air.
50 it follows that he who drinks
water OF breathes air upon govern
ment land is a trespasser. Absurd
result, into which We are unavoid-
ably driven, by the logic Of the
opinion.
Bat Independently Of this: We
had supposed a trespass to involve
some injury real or theoretical !; the
violation Of some right actual or
technical as Blackstone puts it, a
- t~ransgression or ofense against
the law" As the government is in
nc manner injured by the diversion
of the water of 4 private stream ; as
none of its rights are violated by
such diversion ; as there is no law
forbidding it; indeed, as diversion
is expressly sanctioned by act Of
Congress approved July 26, 1866,
and an easement granted in the pub
lie lands to facilitate diversion, it
is incomprelensible how trespass
can be found, and made the basis OF
a decision SO revolutionary in its
character, and so ruinous in its CON
sequences.