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

| 6uO "a. his Statute was III 1OICc d. Iuc lAuuc
the plaintiffs made their appropriation OF
above referred to became law. This statute,
rs far as it could, established and recognized
the right of appropriation of water for agri-
cultural purposes. Of course it could not
establish this right as against the general gov
ernment, OF any person claiming Hereunder.
But as against any other parties, the plaintiff
would have the right to the use of any water
appropriated for that purpose, if they are
prior appropriations. As far as the legislative
assembly Of Montana had the power, they
repealed the common law doctrine in regard
to riparian proprietors If it is claimed that
this statute does not recognize the doctrine of
''prior in time, prior in right" the answer to
this is that when the law gives man the
| right to divert water from stream to irrigate
his land to the full extent of the soil thereof;
and in pursuance Of this law, he goes and
| digs a ditch, or constructs machinery for the
| purpose of taking water from stream for
this purpose, at great expense, the principles
of equity come in and say that no other man
can come in and divert this water away from
him. That lie is prior in time in availing
himself of the benefits of such statute, and
his rights are prior to any subsequent appro-
priator. It is claimed by the respondents, and
it would appear, was held by the court below,
that this statute had been decided to be void,
as in conflict with the Organic Act of this
Territory. The decision referred to did not
hold that the whole of this statute was void,
but only portion of it. The statute confer
red upon certain officers called commission
ers, the right TO apportion the waters OF any
creek, "having reference to the legal rights
conferred upon the commissioners the power
to determine what were the legal rights of the
parties; that this was judicial power, and
that the judicial power of this Territory was
vested in certain courts, by the Organic Act,
and that our legislative assembly had no au-
thority to confer any portion of it upon the
commissioners provided for in that act.
The declaring. of certain provisions Of a
statute void, will not certainly have the effect
of declaring all Of the provisions of statute
nulity. One part of stutute may be good,
and one part bad. We can see no reason for
holding any other portions of that statute
void at this time than were declared such by
the decision referred to. 1t was a rightful
subject Of Legislation, to repeal or modify the
doctrine of riparian proprietors in this Ter
ritory, SO far asthe same affected the posses
sorry rights to tire soil thereof. The fact that
this law was subsequently repealed does not
affect the decision III this case. The rights
of the plaintiff had become vested, and had
accrued before That repeal. The repeal Of
statute will not destroy vested rights An
other act recognizing the same right, was en-
acted in its place. | hold, then, that the law
of this Territory did recognize and acknowl
edge the right to the use of water for the pur-
pose of irrigation, and that it recognized it in
the prior appropriation to the extent his soil
could be devoted to agriculture, and no far
ther. '-'
Thirdly-has this right been recognized and
acknOwled by the decisions of the courts?
In California the courts have sustained the
right to appropriate water for mining pur-
poses.
The courts of this Territory have followed
and repeatedly approved of those decisions.
The legal grounds for sustaining such right |
have been based upon the view that the un-
surveyed lands of the United States, upon
which any community Settles must be treated |
as belonging to no one. Hence, the one who |
first appropriates any portion thereof, or in
cident thereto belonging, for beneficial pur-
pose. would become the owner thereof until
the general government or some one claim
ing Hereunder should assert title to the same.
The right of the first appropriation to un-
owned property has always been recognized
and protected by the common law. OF course
this right can be regulated by law. The Cal
]
ence between the appropriation of water for
mining and milling purposes.
Ortman, ct al VS.. Dixon, ct al, Is CAL 33;
Mcdonald and Blackburn VS.. The Bear River
and Auburn Water and Mining Company, ID.
s2O. In this case the court hold the follow
inc language: "We have held that there is
no difference in respect to this use, or rather,
purpose to which the water is to be applied
at least that an appropriation for the use of
a mill stands on the same footing as an ap-
for the use of miners"
we would he justified in the inference from
this language, that that Court did not make
any difference in the use or purpose for
which water was appropriated, it the use
was beneficial one. The courts of this
Territory and of California have sustained
the right to appropriate agricultural Ernd for
agricultural purposes. upon the unsuryeyed
public domain. The water that flows over
land is but an incident to it. There are no
grounds upon which court could sustain
the right to appropriate land, that would not
apply to the right to appropriate the water
lowing over land, an incident to the land it.
self TO give the one right and deny the [
other would be the granting of the right to a
party to appropriate every vesage of piece ,
Of property, and deny him the right to ap-
propriate small portion thereof. The right
10 appropriate water for mining and milling I
vesting in this country, before the I
let of Congfess above referred to, upon the ,
grounds that no one owns the property, and I
that the appropriation is for beneficial pur-
pose, establishes a principle that certainly
ought to allow the appropriation Of water for
The purposes of irrigation. In this latter case {
10 one, it would be presumed, owned the =,
water, and the appropriation would be for ! j
beneficial use. Whenever a legal rule is q
once established by legal decisions, it COM {
rols an cases which come within the reason |