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

NECESSITIES or TUE PEOPLE, and not
SO as to deprive q whole neighbour
hood or community of its use; and to
give an ABSOLUTE MONOPOLY in
single individual This was in 1884;
eight years after the Act of 1866; and
it is noticeable that there is no refer
ence by the learned judge TO that Act.
He clearly does not regard it as GRANT
ING any of the rights he ennumerates;
but he looks back to time twelve
years behind that Act, to recitation
by a State court, of certain customs
which that State had permitted and
encouraged, on the public domain,
From all that appears his language
would have been the same had the
Act of 1866, never been passed
This utterance by the highest court
in the United States, demands special
attention, as being an authoritative
statement of the nature of these water
rights on the public domain; and the
basis on which they rest, from fed
eral standpoint. As to their nature,
and rules of contraction, there is in
these words, little room for the ''vest-
ed rights" iron rule theory. They
bring this claim of absolute right
down to a recognition of the rights of
the public, to the rights and equities
OF other settlers, and make them sub
iect to those rights and equities. And
all this Notwithstanding the Act OF
July Goth 1866
But further still; the same court in
Atchison VS. Peterson, 20 Howard,
507 says:"The appropriateness water)
does not confer such an ABSOLUTE
RIGHT to the body of the water divert
ed. that the owner can allow it after
its diversion to run to waste, and
! prevent others from using IT." Why
then, his ownership is not absolute;
and neither the Act of 1866, nor even
the customs which it tolerated, estab-
lished an absolute right; but what
the holder does have is a sort OF ben
: eficial trust which he holds by suffer
, ance only. That would seem to be
the logical sequence. His right then
: whether under custom or the Act OF
:. 1866. he holds under a paramount
claim of the State, and subject to the
necessities of the country, and tue
I equities of other settlers.
Such construction OF that Act, OF
OF the rights by custom, is but reas
:, enable and just. But further from
the same case; "what diminution in
: quality or deterioration in quality
will constitute an invasion of thC
rights of the first proprietor, will de
e, pend upon the SPECIAL CIRCUMSTANCES
): of EACH CASE. CONSIDERED WITH REF
) ERENCE TO THE USES TO WHICH TIL
u WATER is APPLIED. This certainly
:, would indicate very loose kind o
d absolute right" and one likely tc
d "depend on the special circumstance
s of each case;" and granting 1t a!
5, stated by the court may we not pu
t. the converse, and say that wha
ID shall constitute an invasion by "th
first proprietor of the rights of tn
in public,of of individuals, also depend
s. ON the special circumstances of eacl
ii case? There is nothing in the statut
10 of sc, or in the .'customs" inconsiS
f. tant with our doing SO. There is the
r. under the statute and under the Gus
IN toms approved by 1t, as construed b.
I'd the U. s. supreme court, none OF tina
n; iron clad law of absolute right, bu
IS there is latitude for the recognition 9
n the demands of public interest, an
rs, of natural equity in adjudicating sue
Sc water rights, but also, the recognitio
ar of those principles are affirmativel
lr- enjoined 1t is worthy of noting that
to the Act in question there are no word
te, that enlarge its scope beyond q bar
to recognition of those customs existin
&c when it was passed, leaving the futuI
CHI out of the account. In Broder '
IN Water Co. 101 U. s. 275, the coul
he say "On the 26 of July 1866, Coz
ce gress enacted law, the purpose {
ro- which was to deal with the rights {
ral miners who had THEREToFoRE witt
"; out objection, and with the tacit Ell
he enlargement of the United State
IL discovered, developed, and mined IL
to public lands" quoting the sectio
raj of the Act as above. AS the Act
nd self was not prospective in its term
as and its object was merely to "dei
lr- with rights Of miners who had Their
re- ToFoRE" settled &c, it is not plat
Use that the Act, customs and all, amour
" to anything more than mere prec
Ter dent in determining rights accruin
ds. subsequent to 1866. 1t is probab
IS better however to give the later Gu
for toms the same force and effect {
re were accorded By the Act to thoi
&c. "theretofore existing;" without doir
on so, unfortunate consequences mig
20 ensue.
80 Dat hon, n ~, fI,aua Tartipa nffpnt(