The avant courier. (Bozeman, Mont.) 1871-1872, 1872-01-04
diversion above him; and if it is the province

E AH.s n He Seconu proposition necessarily
leads to an Investigation of the rights al III
parian owners ut common law. and also to
/ the applicability OF that law 20 the warts.
needs. circumstances and conditions CUR
rounding the people of this mountain and
mineral region; and it would not be unsafe
! every lawyer and jurist, and formed AS II was
| from the customs. .usages, habits and thoughts
1 of a people of "a different climate from our
/ own. wheTp the rains caused an abundance of
Ismpisture for farming ard agricultural pllr-
poses, and the annual crops were produced
/ and perfected without the art OF irrigation,
cannot be followed IN its strictness and its
Iitechniaality, IN country where the physical
conditions and the nature Of the climate rem
der II impossible. But if we can discover tie
reason OF the law and the principles upon
which it is founded. and the natural wants
and requirements of the pfople. for whose
prosperity and benefit the law was instituted
and established. We have then a foundation
from whence, by analogy and deduction. we
cantapply the principles we have tolmd.3to
other peoples surrounded by other and DIFF
ferent circumstances, wants <and conditions.
| And SO the principles ard the reason OF the
common law adapts itself to every climate.
and to the physical conditions OF every coun-
try,sas dictated by the natural wants of the
people fiI'whose behalf the law is invoked.
The common law declares that stream
begins at its source. where it comes to the
surface, and the owners Of lands adjoining
it have a natural right to the use Of the water
from its source to its termination. essss5
~ "A river Or stream. CT common right. be-
longs to the proprietors of the land between
which it runs, to each chat part nearest the
land. and this rule is mainly derived from the
fact that the riparian proprietor is the owner
.of tho soil under the water. and by the gem
elal law of property, becomes entitled, as Of
right, to all accessions. Ard therefore it is
that a grant OF land conveys to the rantee
not only the held OF meadow, but all grow
ing timber or water. standing or being there
upon; and thus it is that a stream of water.
becomes the property for certain uses OF the.
owner of the soil over which it passes, 1t
has therefore been held that the right to a.
Water-eourse isaa part of the freehold Of
which no man can be disslezed. but by due
process of law-s.Angel on Water Courses
The owners Of water courses arc denomi-
mated by the civilians RIPARIAN" preprietors,
and the use of this term Is now fully intro
duced into the common law. The soil of the
bed of the stream ITSELF and consequently
the water, may be and most often is divided
between two riparian owners: that, is, the
land on one side may be owned by one per-
son, and on the opposite side BY another;
when such is the case. each proprietor OWNS
to the middle OF the stream, There is but
one difference between q stream running
through mans land. and one which runs
by the side Of it; in the former case he owns
the whole, and in the latter but half-(Starr
vs.. Gheil: 20 Wend, page 149.
If the proprietor of a large tract OF land,
through which a stream OF water flows, sells
parcels thereof above and below him, each
grantee would take his parcel with iull right
to use the flowing wafer on his own land.
subject to the rights of proprietors above
him.--(AngeI on Water Courses;
The right 60 the flowing stream thus be-
coming part Of the freehold,s and passing
with the land. To wuat uses can each pro-
prietor put the water as it flows through his
land? s.
By the general law applicable TO running
streams. every riparian proprietor has Alright
to what niaytb be called the ordinary use Of
water flowing past his land; for instance. to-
1ar
purposes and forhis cattle;aa and this without
regard to tile aeffect which such use may
lave in ease OF adeficieneY a upon proprIeiofs
lower down the stream. Bntfurther. he has
The, right to use it for any purpose, or what
may be deenlad an extraordinary use OF it,
provided he does not thereby interfere with
the rights Of other proprietors either above
Or below him; subject to this condition. he
may dam up the stream for the purposes Of
mill. or divert the water for other pur-
poses. But he has no right to interrupt the
regular flow of the stream, f he thereby in
terferes with the lawful use Of the water by
other praprietors. and iHfiiets upon them a
sensible i.jury.-[l2, Moore. T. 81, p l56.
In other words each riparian proprietor
has the right to use the water Of The stream
to quench thirst. for culinary purposes. and
for the use OF his cattle; and this, although
such use may injule, the proprietor OF The
lower estf te; and he can use the water for
other and. speculative uses. if he does not
thereby interfere with the dow of the stream
or diminish its. quantity or quality.
Thus speaks the law in a country where
the rains sufficiently inoistens the earth TO
produce and ripen the. fruits thereof. and
where irrigation for the purposes of agricul-
ture are unknown. and it will be observed
with wiatszeaious care the streams and water
courses are guarded and protected. and the /
reason for this care is the fact that the.waters
DC .,ilowing stream, asitTenters the lands Of
different propretors. and while it remains /
theraon, becomes a part Of the freeheld, and
is tits supposed to- be used to support and
sustain life, and derives its peculiar value
rom this important use. tfleslaW declares
hat it must enter the lands of each owner
through which the stream passes, nndimin-
shed in quantity. and SO pure and unpol-
nted as to be fit for this primal use and pur-
bose. sh aa
We have now arrived at this inquiry, and
oilowing the reasons and analogies OF the
common law. we ask: To what uses may
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