Idaho news. (Blackfoot, Idaho) 1887-1891, 1889-12-14
1mroRTaNT WATER DECISION.
By Hon. C. II. Berry, Judge of Third
Judicial District Of Idaho.

judicial DiStrict OF Auan0s
District Court Sd judicial District,
idaho. in and for Cassie County.
Lee..K Kirk, ct al, plffs.
A. Bartholomew, etal. dfts. First
GENERAL CONSIDERATIONS:
The Importance of this case, as one
involving the right of settlers, on or
near a natural stream in this Terrific
nv, to the use of the waters of that
stream for irrigating their lands, in
vites inquiry into thes foundation of
such claim of rights, and as to the
character and extent of those rights,
These considerations are of constant
application, and, more or less, enter
into every controversy about water
for irTigating purposes, | may therefore
perhaps be excused for being some
what discursive IN this memorandum.
USE OF WATER FOR IRRIGATION.
1t must be noticed in the beginning
that the rights in question relate to
the irrigation.of agricultural lands;
and are not in any way connected
with mining interests. Some may
deem the distinction unwise or dan
gerous, as opening a way for the re-
cognition of principles, not in accord
with some decisions, or claims of
water for mining purposes, and which
cases some claimants of water for IT.
rigation can lily dispense with. But
/ think the distinction is proper one.
We may further along, see the reason
for this distinction more clearly. The
subject of the right to the use of water
Tor mining purposes only, or to divert
it by bitches for the purpose of sale
and profit, has engaged much atten-
ton in the Pacific States and Terrific
ries, far more than has the subject OF
the use of water for irrigating purpo
ses; and the latter subject has not,
think, received the attention, its great
Importance in this Territory, at least
demands. Certainly in this part o.
Idaho, and think in other parts a;
we'll, water for irrigation is of greater
moment to community at large, anC
the general interests and prosperity
of the country, than the interests o
placer miners. In fact, it is here o
paramount Importance. Our condition
in this respect, is not unlike that 0
Montana.
In case in that Territory, (nov
state,) Thorpe VS. Freed, l Mon. 653
the supreme court say: ever sine
the settlement of this Territory, it ha
been the custom of those who settle
themselves on the public domain, an
devoted any part thereof to agricu
ture, to dig bitches and turn out tn
water of some stream to irrigate sue
land. This right has been general
recognized by our people. 1t has bee
universally conceded that it is A NJ
cEssITY OF AGRICULTURAL PURSUIT
So universal has been this usage, tn:
do not suppose there has been pa
eel of land to the extent of one acr
cultivated within the bounds of tn
Territory, that has not been irrigate
by waters diverted from some runnin
stream"
By slight change, this might app
to Idaho, as well as to Montana; an
it shows the paramount Importance
the subject of diversion of water fl
irrigation, over, in at least, more tha
half of this Territory.
On the other hand, the paramoul
importance of the mining interests
California, has given prominence
the subject of water rights for tn
purpose. Not but that agricultur
interests we're large there, as plac
mining is of Importance here, b
there placer mining has heretofore
least, taken the lead of agricultur
pursuits. Hence in California wat
rights for irrigation have been,
think, unduly merged in the subje
of water rights for placer mining.
is generally conceded that the LAY
governing the use of water are shap
by necessity; and it is there {
sulned that the necessities of agricl
tural interests are the same p.actic
~, as those of mining; and hence th
the same rules and laws govern BIO
classes of cases.
California decisions are general
followed in the Territories, and hen
the placer miner of California,
found giving his customs and rules
law to the agriculturist of Idaho.
is assumed that it makes no differen
that the necessities or convenience
the placer miner, would stop sett
ment by monopolizing the strear
and exterminate large part of {
already sparse agricultural popu
ton; we are still cited to his rules a
cases, and expected to be content W
them. Those who invoke the mine
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