Bozeman avant courier. [volume] (Bozeman, Mont.) 1872-1882, 1875-01-29
WHO owns THE WATER I

WHO OWNS THE WATER d
A decision Of much practical interest
1ust now, teaching water rights, - moor
pora,cd il the second volume OF Sawyer's
Circuit Court Reports, now going through
the press. Wa'er rights have assumed an
importance n his State never known be-
fore Every running STIR am and every
spring represents fertility, wealth and lie.
Years ago land operators took up. as Tar
Is possible, Ill the springs and bead-ws
icrs Of small streams on Government land,
in order to hold the key to the situation
The smallest subdivisions OF forty acres
would often suffice. A spring of water
then would practically hold ten thousand
acres Of public land. Nobody wante d land
without water.
Heretofore, mining interests have largely
ii, ped water-rights. The system which
prevailed was liberal one for the miner.
because the water in the mining districts
had little va'un, except rs it might Do
turned to account by mining men. With
out wa.er they could do nothing. With
Il. they could turn out millions Of gold.
But water has come now more valuable
for agricul ural uses in Ga itofnia than y
il f,r mining purposes, although IN the
latter view it is still Of great imPortsrce.
The case decided by the Federal Circuit
Oour. Va, on suit brought by the Union
Mil and Mining Company against Ferris
and thels t6r diverting the wa,ers OF the
Carson river. The plaintiff had acquired
title to tract of land on the river, and
had constructed dam, race aud mill for
reducing ore. Prior 10 that time the PLAIN
lift had he'd the possessory right. the Zee
being in the United States. The defend
ant ente' e upon portion Of public land
about twenty miles above the POINT where
Ire plaintiff hid erected a mil, q 9; finally
b.a.ned pasen, for the land. This tract
If Ia, d was. arabic and the defendant d.
v.rt,d par: st The water in the east FORK
+ the river. and condrc'ed it on to bis
La, d BY means of . ditch, for irrigating
!: u D SEES. He used the water cont uous'y
from 1860 until suit was brought, more
than ten years after such use began.
The Court, in q, Gliding the case, starts
with lhe proposition that before the title
o these Ian Is was acquired from the Uni
I'D s.es 10 occupancy or appropriation
of tie water by either party, no State or
Territorial legislation, and no rule Or de-
cision established BY The State courts in
/, controversies between occupants of public
). IS, can in any manner qualify, limit or
restrict the op. ration of the Government
patcn.. A stream OF running water is
part and parcel of the land through which
i. flows, and the use of it as an incident
passes with the title to the land. The
right Of the Government to such use,
tharef, re, ;s:a' 'solute until the title passes,
when the grantee takes all the Govern
ment held.
! The Court further held that riparian
proprietor may lawfully divert the water
of a stream f.. X the purl ose of lrrigating
lis land to . reasonable extent. But in
no case may lie do this 30 AZ to destroy,
render u~efcss OF materially affect the ap-
plica,ion Of water by other riparian pro-
e,ors. It is held that irrigation is not
a'nr~l want, in the sense that water is for
quenching thirst. that riparian proprie-
tor may satisfy without regard to the
rights Of Other A riparian proprietor is
only entitled to take water on to his own
land, and must return the surplus to the
stream before it leaves his boundaries.
VIII It's reasonable use is to Undetermined
by circumstances. But riparian PRO
orie;or cannot divert the water and 50 ab-
s ,rb it on his own ground as to sensib!y
diminish nil powers Or other water rights
below HIM. l, would follow that water
con par es, not being riparian proprictors,
cannot obtain the right to divert water
running over public lands except BY pur
! hasing the rights Of all the riparian pro-
pr,etors or by undermining these rights
under the provision of eminent domain.
Condemnation involves appra;sement and
payment Of damages 10 all parties who
have . right to the water. If stream or
axe were taken up on Government land,
parties acquiring rights below on other
public lands would sill have Alright to the
water q an incident 10 their title.
The points decided are of Importance,
also as affecting irrigation companies.
STRAINS cannot be diverted or dismember-
ed by such companies and the water sold
unless tile right to do this has been pur-
chased Of all the various proprietOrs, or
the right has been acquired by condemna-
ton and the payment of appraised dam
agss. The waste Of water, or the CONVEX
sion 10 private use beyond reason able
necessity, is a violation of the souhdest
principles of law. Water is property .,
incident OF the land. It cannot be separ-
a,ed or turEed out of lis course by any
r,gh's which exists in one or dozen pro-
prietors. 1t is As much protected by law
IS standing timber or growing crops.