Idaho news. (Blackfoot, Idaho) 1887-1891, 1889-12-14

lature to so provide; and in doing so
y may show favor, within reasonable
limits, to him who may first reason
ably use the water. 1t has done this
and has not done more. WATER NOTICES
under chapter of title Q, are not
condition precedent to a proprietor's
right to use waters from the common
stream. He has such right without
my notice AZ all. But il he desires
more than his equal share on the
ground of prior appropriation, in that
case the statute prcscribes what he
shall do to obtain it. But it must be
promised in all cases of water notices.
that hls appropriation must be prior
TO that OF any one who is not using
more than an equal proportion of the
water, but who has not made his notice,
in order TO entitle him as against
such user TO any part of that equal
share so being used. Notice or not,
he can not take any part of chat equal
share or shares, which Others are
rlghtfully using. But If in fact first
user Of water, claims greater
share because he was first in use un-
der section 1856, his compliance in
respect TO notice and other forms un-
der sections 3l60, 'Gl seems to be
necessary. Such compliance may en-
able him to sustain, or bus non com
pliance may defeat altogether his
claim to more than his proportionate
share.
On the first part Of this case, we
reach then the following
GKsERAL CONCLUSIONS.
let. That customs affirmed by Act Of Con-
gress, July 70, is6s, gave no absolute and fired
right of property IN the water IN the natural
stream when used for irrigating purposes. but
only a privilege to use the same IN 4 reason.
able manner, aud subject always to the de.
~; and snblert also IN the natural rights and
equities OF other persons.
ga. That such rights or privileges can only
attach upon lands while the same are part
{
inception on lands claimed under the Land
Laws Of the United States for the disposal oi
the public lands.
I'd That such customs and Act are not 10
be construed as fundamental laws Of proper
/ ~. but rather as rules for the USE OF property
held only by possession.
4th That the rights OF none Of the parties
liIiRant ia this action are created or exist. un
/ der The Act OF leo, or by the customs thereby
ncknou icdgcd.
Z 5th That water rights, having their begin
Z ming on lands segregated from the public do
main, art derived from the common law a,
modified by the statutes OF this Territory.
9th. That the common law Of riparian rights
1 has Teen modified ~ statute; and that by suci
statutes The PRIVILEGES Of riparian proprietor
10. irrigation, have been extended 10 the pro
pTiuiorH OF AL lands sufficiently near 10 q
stream. reasonably to be irrigated from IL.
l 9Th. That the natural streams OF the coun
4 try, are the subjects OF public and common
right; and that private ownership In theii
I waters, beyond a restricted and special priv
I iege 10 use the same. cannot be bad under oul
Lass.
/ sth, That the right 90 divert waters from
/ stream for sale for irrigating purposes, sub
4 ject 20 tie necessities OF agricultural pursuit.
/ may he had but that the foundation OF suci
I privileges "a distinct from that OF diversion
dlrectiy Tor irrigation, and must be clAsset
/ With diversions for the purpose OF sale or U.S.
Z for mining purposes or the privilege must b.
established by appropriate legislation.
9Th. That ali proprictors Of lands on or neai
natural streams. have right 20 some OF th'
/ waters 81 those streams for irTigattnR aud do
fnesiio purposes: but that In It's division, q
distribution, custom ana priority OF use, MAJ
bc Recognized.
10Th. That the statutes Of Idaho. on the sub
icct o. water notices, aud priority OF use, ar Ar
uAturc Of police regulations merely; and a.
SUCH bur subject 90 the laws Of property, ar
operative and binding.
18th. That the use OF water must be for
honinrial purpose as well 90 the public as q
the Individual: that lite use must be reasonh
Die IN View Of the general condition ana need
OF the country, pIUspeciively as wen as al "
present time and that in Its distribution, pun
M aud common rights, rs well ms privat
equities. must 10 observed.
isth. Claim and notice under Chap. !, It'll
TX, OF the Statutes OF Idaho, are not necessAr,
60 cntitle proprietor 70 Just prolorsion Q
than his proper proportion, by reason OF PRO
Appropriation and use, he must for such q
cess comply with the requirements OF "a
statutes IN that respect.
soNE QUESTIONS or EVIDENCE,
And the more particular features Of this case
Frnm the foregoing discussion or general prit
riplps we como now 20 consider some que'
tiuns arising on the trial, and the more speciu
, feNturcs OF the case. And % the adjustment q
Inc riehts Of the parties pursuant TO thos
general conclusions.
QUESTIONS or EVIDENCE AND or Law.
la Docs SIMPLE conveyance OF lands car
~ with the lands a water right for irrigaun
: IL itis claimed that II goes with the land .
an maintenance to It, Strictly ~ CONVEX
I ,,,,fea tht term appurtenance Will NOT carr
Hthcr rial estate than that which Is the maj
snbtett a the deed. Land Ia not legally appul
A., / tenant 10 land IL has been attempted 10 rals
, | seater privileges into a kind OF real propeft,
ana passihly there may he some Glasses
such rights susceptible of being so regarded
s,,rh ~ water for mining purposes,tbut uhdt
: laws differing from ourE,l anu wnerc pIopIu
~, amin of lands on which IL Is 20 be used
,,,,t n condition of the right, and cases eAl'
: holding such distracted claims, arc 10 PC trea
nj As rial property, aud subject 70 rules So
cr-niug the conveyance OF land. but 0oul
, tbr ennndncss of such conclusions where "
, nae iE n mere easement and not OF user w Y
/ denandent property, and think the uett'
yiiyr Ia that water rights for irflKation puIls
r scs ,asa with the soils and especially Mnsi
d. fbp decd Of conveyance includes appu.tena
ses Tucker VS. Jones, ~ Pnc. hep, 6!l !
, hold not only on the ground OF anthoIlty =.
= ais,, that IN caees OF water rights lot HrlR
: tInn. In this country where such right - neee
sn,y 10 the value OF the land, such oohstru
, tinn is necessary.
o.. objection is taken to certlnoates OF g
. ,,x, and other like papers, from the We. iSaI
L nitlcea on the ground that they arc NOT w
4 dcnce as 10 the acts of the parties 20 VINO
v,,n' back of the time of their date. hold th'
c ~ tbey are evidence of the completion, or
, snast II the continuance of the party pnrsu
az iitlc. they may relate back OF tnelr aate ~.