The avant courier. (Bozeman, Mont.) 1871-1872, 1872-01-04
sMAN MoNTANA TERRIToRY, THURsDAY, JANUARY =, 1870

poses OF irrigation, naturally belongs to each
/ riparian proprietor iii certain proportions as
water tor culinary purposes beings to such
/ proprietor at common law. Water for the
purposes OF irrigation IN such a country ii
/ equally necessary as water te Sustain life, for
/ it would be next to impossible 10 support life
unless the farmer can use the water of the
stream for the production Of food for the
/ people. The resources Of the country cam
not be developed, and our valleys cannot be
reclaimed and beeome inhabited unless the
waters of the streaals can be used in an
equitable manner. to cause the earth to bring
! forth its fruits! So then we say that water
for irrigation in this country as naturally be-
I longs to the lands through which the stream
passes, as in other countries it belongs, it be-
longs to the land to supply the necessities of
Fife. Irrigation In this country is what rain
/ is to other countries, and monopoly of one
would be equally as appropriate as that Of
| the other, and equally sustained Nv any prin-
efples of Justice and equity.
3 lie law maid of justice andseq,ity Y. must
conform to the peculiar and unusual conai-
+ #tions surrounding each country where it is
| administered, and the farming interests Of
Our Territory can only be crowned with sur
cess when affair and equitable distribution of
our scanty water is accomplished.
Let Us examine the doctrine in an agricut,l-
ralcommunity as applied tonailiing districts,
that the first appropriations Of the waters of
stream acquire an absolute property therein.
as against every one except the Government,
and that they can hold the same against all
subsequent appropriaturs thereof.
In the first place, this doctrine leeds to a
monopoly in water, which. in the language
OF one OF the witnesses in this case, is more
precious than gold.'' An illustration may
be useful. Suppose that ten men locate a
farm each of l60 acres upon the banks of a
stream whose volume il. 5000. inches, and
with bitches appropriated the waters of such
stream. Ii two inches of water is necessary
to the successful irrigation of an acre Of lard
for the season. or three hundred aud twenty
inches OF water for leo acres, each man
would be entitled to 800 inches of water. or
ten men 5000 inches, And if each OF these
men. year after year, should not wish to eul-
tiyate but go acres, each of their aud, or $40
acres altogether. yet they could hold the
1900 inches Of aier;fhey did not use; and if
subsequent locators above them Oh the
stream should attempt to appropriate any Of
the waters thereof. an injunction would be
to restrain them from so doing, and thus
]. 600 acres would be wasted to cultivation.
Tho prior appropriation, by virtue of this
doctrine can hold sufficient water to irrigate
the land he locates, and if he takes 160 acres
of land he can also appropriate sufficient
water to irrigate the same, and yet he may
not, in TACT. and may never Intend to culti-
vate more than one-third Of his land. Can
the subsequent appropriaears OF water be de-
priyed OF water in this manner? Andis it not
the true policy of this Territory to erect such
a system of laws here as shall distribute our
short supply of water to the best advantage
OF all the people.
An examination Of this doctrine of prior
appropriation as it affects the interests Of the
general government may not be out of place.
The United States is the original proprietor
of the soil, and as such, has the right to
make final distribution thereof. This is a
sovereign prerogative. and here is the deposit
of this sovereign power. The proceeds Of
the sale of the public lands are a truitfal
source Of revenue to the government, not
only as to the amount received therefor, but
III much larger sense, in extending the area
of our civilization and opening up to our
ever Increasing population cheap lands for
cultivation and improvement. Now. if the
doctrine of prior appropriation and the rights
quence must result. A few men may locate
tIeirEiarms near the mouth of a stream aud
appropriate the water thereof, and subs 1
qilent locaters up the stream are guilty OF a
tresspass if they undertake TO use any OF
said waters. and an action could be prose
cuted and maintained against them. The
result is. that thousands OF acres in our val
Ieys must remain barren deserts which, with
an equal and just distribution Of water, al
might lie cultivated Thus. the prior appro-
priator renders vast tracts of land utterly
worthless. and their sale is lost to the Gov
ernment and their cultivation to the people.
Such doctrine is against public policy, and
cripples the life OF the industries of the ,fer-
ritory. t
The doctrine Of prior appropriation goes to
the extent at declaring that he who first ap-
propriates the waters Of a stream requires al
absolute property therein as against all the
world exceps the Government. which proper
ty is capable Of beng bought and sold. IN
herited and transmitted from generation to
generation.slike other. property. This para
mount right of the Government. i'll its SOW.
ereign capacity, to make q final and absolute
disposition of its lands. and the water there
OF. will serve to place this doctrine Of prior
appropriations where it rightfally belongs,
Let. us suppose that A. hy aeansof ditch
appropriates the waters of a stream, and thar
he is the first sappropriator thereof. It is in
sisted that he can hold this. water and this
right as against all excepting the Govern
ment of the United States. Grant that this
Is SO and what follows? The Government. re-
an absolute property IN the soil and
waters thereof, and having The right to make
d final and absolute sale. when it comes to |
sell to subsequent; lo,ators upon the ne sup
posed stream, what interests does the pnr-
chaser thereby acquire? What rights does
The grantee thereby succeed to Can It be I
doubted that the grantee in case of sHeh sale I