Helena weekly herald. [volume] (Helena, Mont.) 1867-1900, 1873-03-06
OPINION BY KNOWLES, JUSTICE.


This case in some respects is anomalous.
The plaintiffs assert right to the waters OF
Prickly Pear creek as propriators thereof,
for the purposes of irrigation, and complain
that the defendants have diverted some of
the waters of said creek and prevented the
same from flowing into plaintiffs irrigating
bitches, and ask for an I'M junction to prevent
the continuance of this breach of their rights.
The question of the right in this Territory to
appropriate water for the purposes of irriga-
ton is one of great importance anu general
interest, and which perhaps ought to be deter
mined at the earliest day possible. Undoubt-
edly this cause might be decided in view of
the manner in which it is presented to this
court, without considering this question.
But as it was presented in the trial IN the
court below, and is ably discussed in the
arguments of both appellants and respondents,
we feel called upon to express our views
concerning it.
The common law rule was, that he who
owned land upon the banks of running
stream, or land over which the same flowed,
had a right to have the waters thereof flow
down by or over his land undiminished ma
terially in quantity or quality. The riparian
proprietor could use the water flowing past
or over his land for domestic purposes, and
to quench the thirst of man and animals;
but no one was permitted to divert water
from the channel where it was accustomed
to run for the purposes of irrigation. Ger
tainly, such diversion of water would both
diminish materially its quantity and quality.
The first Legislative Assembly of Montana
Territory, enacted
"That the common law of England so far
as the same is applicable, and of general
nature, and not in conflict with the special
enactments of this Territory, shall be the
law and rule of decision, and shall be con-
sdered as of full force until repealed by
legislative authority" Laws of Montana for
1864 and 1865, page 1856.
The only way that a court can escape the
bearing of this statute on this subject, would
be to hold that the common law upon the
question of riparian proprietors was either
lnapplicable, or was not of general nature,
or was in conflict with some enactment Of
the Legislative Assembly of this Territory,
or of the Congress of the United States. 4
We have running streams upon whose
banks people live and hold land, and this
would be sufficient to show its applicability.
We do not conceive that court can say that
the provisions of the common law are not
for the bests interest of this section of coun-
try, and therefore inapplcable. The ques:
ton OF whether or not law Is for the good
OF the people in our Territory, is matter for
legislative and not judicial consideration.
Much of the common law of England per
tains to the English form of government, and
the privileges of castles, which are not at all
applicable to our form of government, and
these are the provisions of the common law.
presume the Legislative Assembly had in
view in the enactment above referred to, as
inapplcable. 1t seems to be contended BY
1ne court below, that the natural wants OF
man, and the physical and climatic condi-