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

s:Ubi eadem ratio its idem jus, is famil-
lar legal maxim; one which courts of law
have long acted upon in arriving at legal de-
Examinations. Broom, in his work on legal
nlaxims, page 131, shows how decision in
relation to the alteration of deed or bond
was declared to be authority in the alteration
of bill of exchange, and promisory note,
because the reason of the rule established in
the former eases was applicable to the latter,
and finally the decisions in these cases were
held to be authority in the case of the altera-
ton of guarantee, for the same reason.
"The law consists, not in particular in
the law, for reason is the life of the law"
Broom's legal maxims, page 1SO.
The reason of the rule that allows parties
to appropriate water for mining or milling
purposes, being such that it would fully sus-
tain the appropriation of water for the pur-
poses of agriculture. And there being no
reason why the courts should sustain the
right to appropriate land, and deny the
right to appropriate water, a mere incident to
land, for the purposes of irrigation. think
we can safely say that the appropriation of
water for that purpose has been acknowl-
edged and recognized by the decisions of the
courts. To hold otherwise, because no de-
cision had been made in this Territory, main
tanning the right to appropriate water for this
identical purpose, would be ''sticking in the
bark" and ignoring the spirit of the law, and
disregarding the maxims of which our CON-
mon law jurisprudence has been so boastful,
that reason is the soul of the common law.
The right to appropriate water for the pur
poses of irrigation, having, in our opinion,
been acknowledged and recognized by the
customs, laws and decisions of the courts of
this Territory, the law of Congress comes in
and says that whenever by priority of poses
sion, the rights to the use of water for this
purpose ''have vested and accrued" the pos
SCISSORS and owners of such vested rights
shall be maintained and protected in the
same"
Thisisin effect a grantto such parties Of this
right. 1t appears from the statement of the
evidence in this case, that all the parties to
this action now own the government title to
their lands But this will not vary the rule
above established in this case. Whatever
rights the parties had in relation to the wa
tiers of the Prickly Pear creek were vested
before any of these parties acquired their
rights to the land under the general govern
ment. This decision, it will he understood,
does not go to the extent of allowing parties
to appropriate and divert water, SO as to pre-
vent the samesfrom flowing over land to
which party had obtained the, government
title, after the acquisition Of this title IF no
one boforo the pre-emptiOn and entry of land
by party, has acquired the right to divert
the waters of stream, then the patent from
the General Government conveys the water
as an incident to the soil over which it flows
If it has been appropriated before the time
when the patent takes effect, it does not. It
is claimed however, that this act of Congress
H.
domain, as long as it remained unsurveyed,
and was not open for pre-emption and entry.
There is no reservation of this kind in the
act itself And, to show that this was not
the intention of Congress, we have an amend
ment to that act, approved July 9th, 1870. A
part of the seventeenth section of this
act is as follows:
''And be it further enacted, That none of
the rights conferred by section five. eight and
nine, of the act to which this act is amenda-
tory, shall he abrogated by this act, and the
same are hereby extended to all public lands
affected by this act, and all patents granted,
Or pre-emptiOns or homestead allowed, shall
be subject to any vested and accrued water
rights, or rights to bitches and reservoirs used
in connection with such water rights as may
have been acquired under, or recognized by
he ninth section of the act of which this is
This part of that section clearly demon
strates that Congress did not and does not
intend that the rights granted by section nine
Of the previous act should he confined to the
public domain. This amendatory,
" rather confirmatory section, only declares
what the courts would have been compelled
o hold was the legal effect of section nine
If the previous act. A grant of right can
lot be divested by subsequent grant, n The
words uesd in section nine were, as we have |
aid, in effect grant. A grant made by |
aw is as effectual as grant made by deed
" patent; and a subsequent grant of land |
would be subject to any previous grant of a |
water right After full consideration, we
ire impeied to the conclusion that the right |
o appropriate water for the purposes of irri-
,ation in this Territory, stands upon as good,
not a better footing as the right to ap-
'ropriate water for mining purposes. This |
light has been, and is subject to be regulated |
y law. And that the doctrine in relation to
iparian proprietors has been abrogated to a
considerable extent. Before the government
tile to land, over which water flows, has
ecn acquired by a private person, such wa
er may be appropriated and diverted, in &C.
ordancc with legal provisions afterwards it
annot, and the doctrine of riparian pro-
,rietors would prevail as to it. The case of
'ansicle VS.. Haynes, of Nevada, citedin this
ase, is not in point. In that case the gov
had parted with the title to the soil
yer which the water flowed, before the act
+ Congress of July 28, 1865, above referred
D. The patent to Haynes of the soil, before
be passage of that over which the water
owed, carried with it the water as an Incl
ent thereto; and after the government had
arted with this incident to the soil, it could
OF grant it to any one else I certainly
gree with the opinion of the court in that
aSe. - Es4ji' tFsI} tfg.F s F.t ffaz Ial
Ho1,snn of tho 1o~o |